On Thursday, 5/15/08, the California Supreme Court struck down as unconstitutional California’s statutory scheme that defines marriage as a union between a man and woman. The primary statute in question is California Family Code section 300:

300.  (a) Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage.  Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500).

(b) For purposes of this part, the document issued by the county clerk is a marriage license until it is registered with the county recorder, at which time the license becomes a marriage certificate.

See also Family Code section 308.5, added by California’s Proposition 22, providing:

308.5.  Only marriage between a man and a woman is valid or recognized in California.

The court’s majority opinion is rather lengthy, 121 pages.  I don’t intend this post to be a line by line analysis–which would take forever.  Rather, I will simply point out the areas which I think are the weakest of the majority’s opinion.

The California Supreme Court’s opinion and rationale supporting that opinion are to say the least fascinating.  The court begins by noting how radically different the constitutional issues it was to decide as opposed to those decided elsewhere.  I’m not certain why that is relevant.  We really only need to know what the constitutional issue is before the California Supreme Court:

In considering this question, we note at the outset that the constitutional issue before us differs in a significant respect from the constitutional issue that has been addressed by a number of other state supreme courts and intermediate appellate courts that recently have had occasion, in interpreting the applicable provisions of their respective state constitutions, to determine the validity of statutory provisions or common law rules limiting marriage to a union of a man and a woman.

OK.  Well that didn’t really tell us much about what the constitutional question is here in California, and it really didn’t really help me understand just what the court was deciding at all.  Then, in an obvious attempt to justify the fact that the California court was divided, 4 to 3, the barest of majorities, in reaching this opinion, the court rationalized:

These courts, often by a one-vote margin (see, post, pp. 114-115, fn. 70), have ruled upon the validity of statutory schemes that contrast with that of California, which in recent years has enacted comprehensive domestic partnership legislation under which a same-sex couple may enter into a legal relationship that affords the couple virtually all of the same substantive legal benefits and privileges, and imposes upon the couple virtually all of the same legal obligations and duties, that California law affords to and imposes upon a married couple.

The majority seems to be rather sensitive to their slim majority.  I’m not certain I recall many one vote majorities making the point in the majority opinion that it’s the law only by one vote.

The court finally identifies, in a rather convoluted way the constitutional issue it attempts to address:

Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a “marriage” whereas the union of a same-sex couple is officially designated a “domestic partnership.”  The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.

OK, so if I can separate all the wheat from the chaff here, what the court is deciding is whether it is unconstitutional to call the legal relationship that same-sex couples currently enjoy in California something other than marriage.  Interestingly it took the majority 121 pages to answer that one simple question.

It is also critical to have a basic understanding of the legal status of same-sex couples in California before the court ruled in this case.  The court accurately described that legal status very well in footnote number two (of the majority decision) as follows:

We note that although much of the academic literature discussing the legal recognition of same-sex relationships frequently uses the term “domestic partnership” to describe a legal status that accords only comparatively few legal rights or obligations to same-sex couples, the current California statutes grant same-sex couples who choose to become domestic partners virtually all of the legal rights and responsibilities accorded married couples under California law . . .

In light of the comprehensive nature of the rights afforded by California’s domestic partnership legislation, the status of such partnership in California is comparable to the status designated as a “civil union” in statutes enacted in recent years in Connecticut, New Hampshire, New Jersey, and Vermont.

The California statutory framework for domestic partnership rights is embodied in California Family Code 297.5:

297.5.  (a) Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.

(b) Former registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon former spouses.

(c) A surviving registered domestic partner, following the death of the other partner, shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon a widow or a widower.

(d) The rights and obligations of registered domestic partners with respect to a child of either of them shall be the same as those of spouses. The rights and obligations of former or surviving registered domestic partners with respect to a child of either of them shall be the same as those of former or surviving spouses.

(e) To the extent that provisions of California law adopt, refer to, or rely upon, provisions of federal law in a way that otherwise would cause registered domestic partners to be treated differently than spouses, registered domestic partners shall be treated by California law as if federal law recognized a domestic partnership in the same manner as California law.

(f) Registered domestic partners shall have the same rights regarding nondiscrimination as those provided to spouses.

(g) No public agency in this state may discriminate against any person or couple on the ground that the person is a registered domestic partner rather than a spouse or that the couple are registered domestic partners rather than spouses, except that nothing in this section applies to modify eligibility for long-term care plans pursuant to Chapter 15 (commencing with Section 21660) of Part 3 of Division 5 of Title 2 of the Government Code.

(h) This act does not preclude any state or local agency from exercising its regulatory authority to implement statutes providing rights to, or imposing responsibilities upon, domestic partners.

(i) This section does not amend or modify any provision of the California Constitution or any provision of any statute that was adopted by initiative.

(j) Where necessary to implement the rights of registered domestic partners under this act, gender-specific terms referring to spouses shall be construed to include domestic partners.

(k) (1) For purposes of the statutes, administrative regulations, court rules, government policies, common law, and any other provision or source of law governing the rights, protections, and benefits, and the responsibilities, obligations, and duties of registered domestic partners in this state, as effectuated by this section, with respect to community property, mutual responsibility for debts to third parties, the right in particular circumstances of either partner to seek financial support from the other following the
dissolution of the partnership, and other rights and duties as between the partners concerning ownership of property, any reference to the date of a marriage shall be deemed to refer to the date of registration of a domestic partnership with the state.

(2) Notwithstanding paragraph (1), for domestic partnerships registered with the state before January 1, 2005, an agreement between the domestic partners that the partners intend to be governed by the requirements set forth in Sections 1600 to 1620, inclusive, and which complies with those sections, except for the agreement’s effective date, shall be enforceable as provided by Sections 1600 to 1620, inclusive, if that agreement was fully executed and in force as of June 30, 2005.

Even a cursory reading of this statute clearly confirms that all legal rights afforded married couples in California were already guaranteed to registered same-sex domestic partners, before this case reached the court’s docket.  In other words, the court did not have to reach its decision today.  But, that was not enough for the gay community, or the California Supreme Court.  Same-sex couples demanded the social acceptance that marriage affords traditional marriage.  And, the California Supreme Court caved, at the expense of millennia of well established and sound definitions of marriage.

Make no mistake.  This fight is not a legal fight.  This fight is about societal acceptance of a particular lifestyle that many find unacceptable–and will continue to do so notwithstanding today’s ruling.  The fight is waged in the courts, because, at least in California, the same-sex marriage movement cannot accomplish at the ballot box, that which it was able to do with four pens of the California Supreme Court.

It also is important to understand at the outset that our task in this proceeding is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership (or some other term), but instead only to determine whether the difference in the official names of the relationships violates the California Constitution.

Oh please!  That is exactly what the court decided:  As a matter of public policy, this court has ruled that the officially recognized same-sex relationship must be called marriage.  Let’s remember, the court did not extend any further rights to the same-sex community, other than the official designation of their relationship as marriage.  This is what same-sex couples have sought for decades now.  It isn’t about rights, fundamental or any other kind.  It is about, what the court specifically denied–a public policy attempting to force upon the majority an acceptance of a lifestyle practiced by an extremely vocal but very small minority.  And, while the court can legally require us to call same-sex couples married, if in fact they fill out the requisite paperwork–it can never force the majority to accept an unacceptable lifestyle.

This is confirmed in this paragraph from the court’s opinion:

Accordingly, although we agree with the Attorney General that the provisions of the Domestic Partner Act afford same-sex couples most of the substantive attributes to which they are constitutionally entitled under the state constitutional right to marry, we conclude that the current statutory assignment of different designations to the official family relationship of opposite-sex couples and of same-sex couples properly must be viewed as potentially impinging upon the state constitutional right of same-sex couples to marry.

So, what it boils down to is the term “marriage” and the societal acceptance that term implies.  Acceptance cannot be adjudicated from the bench.

Fundamental Right Discussion

The court had to rest it’s analysis on the concept of fundamental rights.  Otherwise, there is no basis to reach the unnecessary conclusion it did reach.  Predictably the court relied on the prior interracial marriage cases:

First, we must determine the nature and scope of the “right to marry a right that past cases establish as one of the fundamental constitutional rights embodied in the California Constitution.  Although, as an historical matter, civil marriage and the rights associated with it traditionally have been afforded only to opposite-sex couples, this court’s landmark decision 60 years ago in Perez v. Sharp [1948] 32 Cal. 2d 711 which found that California’s statutory provisions prohibiting interracial marriages were inconsistent with the fundamental constitutional right to marry, notwithstanding the circumstance that statutory prohibitions on interracial marriage had existed since the founding of the state— makes clear that history alone is not invariably an appropriate guide for determining the meaning and scope of this fundamental constitutional guarantee.  The decision in Perez, although rendered by a deeply divided court, is a judicial opinion whose legitimacy and constitutional soundness are by now universally recognized.

The problem with this analysis is that the statutes in the interracial marriage cases were not dealing with the civil definition of marriage, which is what is at issue here.  Rather the court in the interracial marriage cases dealt with whether the state could criminalize interracial marriages.  And, of course the court in those early cases rightly decided that marriage is in fact a fundamental right, and could not be infringed in that particular manner.

What the same-sex marriage proponents argue is that same sex marriage is and always has been a fundamental right, which in my opinion misses the mark–widely.  What is a fundamental right?

Only rights that are “objectively, ‘deeply rooted in this Nation’s history and tradition,’  and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed’ ” are recognized as fundamental.  See Washington v Glucksberg  521 U.S. (1997) at 720-21.

Both liberty and justice will continue without American Jurisprudence recognizing same sex marriage–nor can I envision same-sex marriage as implicit in the concept of ordered liberty. I can think of no reasonable or rational argument to suggest that if same-sex couples are not allowed to use the term marriage to describe their relationships that neither liberty nor justice would continue to exist–because a so-called right to same-sex marriage had been sacrificed.   That’s just a ridiculous conclusion, particularly in light California’s legal protections already afforded to same-sex couples even before this decision.

Of course, the lower appellate court decision which the supreme court reversed is no longer good law; however, that does not vitiate the validity of their analysis or argument.  And, I think the lower court’s analysis of the fundamental right and same-sex marriage is much more persuasive than is the majority’s in the supreme court’s opinion:

Even the recent history of the last 50 years, however, does not demonstrate the existence of a “deeply rooted” right to or practice of same-sex marriage. While same-sex relationships have undeniably gained greater societal and legal acceptance, the simple fact is that same-sex marriage has never existed before. The novelty of this interest, more than anything else, is what precludes its recognition as a constitutionally protected fundamental right. . . [“A definition of marriage only recognized in Massachusetts and for less than two years cannot be said to be ‘deeply rooted in this Nation’s history and tradition’ of the last half century”]; see also Coshow v. City of Escondido, supra, 132 Cal.App.4th at p. 709 [noting the “mere novelty” of an asserted fundamental right “is sufficient to create a doubt” whether it is so deeply rooted in our country’s traditions and conscience as to be considered fundamental]; Duncan, Legislative Deference & the Novelty of Same-Sex Marriage (2005) 16 Stan. L. & Pol’y. Rev. 83, 86 [“To this point, no court has ever held that same-sex marriage is deeply rooted in a state’s history and tradition”].)

The majority slips and gives us a glimpse into the public policy it hopes to engender with this opinion:

These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.

As I suspected this opinion is not so much about a serious discussion of the law.  Rather, it is an attempt to force the majority to afford to a minority the same respect and dignity usually associated with marriage.  Can you do that from the bench?  Can you force society to accord any specific group respect and dignity via judicial fiat?  Wow!

In fact the supreme court readily conceded that the true fundamental right here was marriage between a man and woman:

From the beginning of California statehood, the legal institution of civil marriage has been understood to refer to a relationship between a man and a woman.  Article XI, section 14 of the California Constitution of 1849 — California’s first Constitution provided explicit constitutional protection for a “wife’s separate property and the marriage statute adopted by the California Legislature during its first session clearly assumed that the marriage relationship necessarily involved persons of the opposite sex . . .

Although the California statutes governing marriage and family relations have undergone very significant changes in a host of areas since the late 19th century, the statutory designation of marriage as a relationship between a man and a woman has remained unchanged.

Since California’s beginning its statutory framework assumed marriage was by definition between a man and a woman.  This is the true fundamental right.  Marriage, between a man and woman.  Not same-sex marriage.  I think this is critical, because opponents point to the recent statutory clarifications as defining marriage in California between a man and a woman.  Not so!  It has always been understood to be between a man and woman.

Equal Protection Discussion

Not content to rest their decision on a newly created fundamental right to same-sex marriage, the court also analyzed the statutes in question on equal protection grounds, inventing a new suspect class of individuals in California, i.e. people who claim to be gay.  Of course, the most obvious difficulty with creating a new suspect class is the very definition of what it is to be gay.  Typically, suspect classes of individuals have been limited to race, in some cases gender, and also religion.  In my own view, sexual orientation or being gay, is not an all analogous to being black, or a woman, or a member of a particular religious group.

Yet, the court plunged head long into the equal protection arguments:

As we shall explain, although we do not agree with the claim advanced by the parties challenging the validity of the current statutory scheme that the applicable statutes properly should be viewed as an instance of discrimination on the basis of the suspect characteristic of sex or gender and should be subjected to strict scrutiny on that ground, we conclude that strict scrutiny nonetheless is applicable here because (1)  the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents like gender, race, and religion–a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a same-sex couples fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite–sex couple.

This is breathtaking in its focus and scope.  The court concludes that “sexual orientation” like gender, race and religion is a constitutionally protected suspect class.  Wow!

One of the difficulties the lower appellate court had in reaching its conclusion was the fact that prior California Constitutional law did not embody “sexual orientation” as a suspect class.  Again, even though the California supreme court decision vitiates that lower court opinion as legal precedent, it does not vitiate the reasoning or factual basis upon which it rests.  And, frankly the lower appellate court readily conceded that never before in California had “sexual orientation” risen to the level of a suspect class.  It noted:

“[w]hile all citizens are entitled to equal protection, the standard of review to be employed in analyzing legislation which singles out a particular group does depend on whether the group is classified as ‘suspect,’ as well as whether the legislation impinges upon a fundamental right. If a suspect class or fundamental right is involved, the court examines legislation under the ‘strict scrutiny’ standard; otherwise, a ‘rational basis’ test is generally employed. [Citation.]” (Citizens for Responsible Behavior v. Superior Court, supra, 1 Cal.App.4th at p. 1025.) Having concluded respondents are not seeking to exercise a fundamental right, we are therefore called upon to decide whether sexual orientation is a suspect classification for purposes of equal protection analysis. Unfortunately, prior case law does not provide a ready answer . . .

Lacking guidance from our Supreme Court or decisions from our sister Courts of Appeal, and lacking even a finding from the trial court on the issue, we decline to forge new ground in this case by declaring sexual orientation to be a suspect classification for purposes of equal protection analysis. Instead, we will follow the lead of the federal courts and other state courts and review the constitutionality of the marriage laws under the rational basis test.

The majority opinion concedes that the vast majority of other cases considering this issue do no classify sexual orientation as a constitutionally protected suspect class:

As pointed out by the parties defending the marriage statutes, the great majority of out-of-state decisions that have addressed this issue have concluded that, unlike statutes that impose differential treatment on the basis of an individual’s race, sex, religion, or national origin, statutes that treat persons differently because of their sexual orientation should not be viewed as constitutionally suspect and thus should not be subjected to strict scrutiny.

Despite this factual finding by the lower appellate court that no previous California supreme court cases or other appellate court cases, or even a trial court had declared “sexual orientation” a suspect class, the supreme court created out of thin air a new constitutional suspect class.  Let’s be clear.  The court is making up in its opinion a new fundamental right–same sex marriage.  And, it is creating a new constitutionally protected suspect class–”sexual orientation.”   The majority opinion admits sexual orientation as a suspect class is of first impression in California in this case.  Neither the new fundamental right or the suspect class existed before this court’s opinion.  Simply breath taking.

The supreme court reasoned that:

Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples.  Finally, retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise — now emphatically rejected by this state — that gay individuals and same-sex couples are in some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples.  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.

This seems a bit circular to me.  The assume for purposes of their argument the conclusion they want, i.e., defacto unconstitutional prior discrimination.  But, of course, while such discrimination undoubtedly existed, that in and of its self did not make in unconstitutional discrimination.  You still needed either a fundamental right or a suspect class to reach this court’s conclusion.  Since neither existed before their ruling–they just made them up to reach the conclusion they wanted.

Further, this reasoning flies in the face of California’s treatment of same-sex couples.  California was one of this country’s leaders in providing equal rights for same-sex couples, as I have already explained in the previous domestic partner statutory protections.  In California, prior to this court’s ruling, registered domestic partners were not second class citizens and they faced no legal discrimination.  Again, we are left to conclude this agenda is about social acceptance on a wide scale basis by society at large.

More troubling is the wholesale adoption as a matter of law, the California supreme court’s conclusion the sexual orientation of of gay and straight individuals:

In our view, it is sophistic to suggest that this conclusion is avoidable by reason of the circumstance that the marriage statutes permit a gay man or a lesbian to marry someone of the opposite sex, because making such a choice would require the negation of the person’s sexual orientation.  Just as a statute that restricted marriage only to couples of the same sex would discriminate against heterosexual persons on the basis of their heterosexual orientation, the current California statutes realistically must be viewed as discriminating against gay persons on the basis of their homosexual orientation.

Is there any basis for this conclusion?  I don’t even think the scientific community has concluded that the sexual orientation between same and opposite sex couples is the biological, moral and legal equivalent of the other.

The Court’s Remedy

The supreme court outlined its remedy at the conclusion of the majority opinion:

Accordingly, in light of the conclusions we reach concerning the constitutional questions brought to us for resolution, we determine that the language of section 300 limiting the designation of marriage to a union “between a man and a woman” is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples.  In addition, because the limitation of marriage to opposite-sex couples imposed by section 308.5 can have no constitutionally permissible effect in light of the constitutional conclusions set forth in this opinion, that provision cannot stand.

Plaintiffs are entitled to the issuance of a writ of mandate directing the appropriate state officials to take all actions necessary to effectuate our ruling in this case so as to ensure that county clerks and other local officials throughout the state, in performing their duty to enforce the marriage statutes in their jurisdictions, apply those provisions in a manner consistent with the decision of this court.  Further, as the prevailing parties, plaintiffs are entitled to their costs.

The judgment of the Court of Appeal is reversed, and the matter is remanded to that court for further action consistent with this opinion.

By the stoke of 4 majority pens, the will of the California legislature and more importantly the California people is set aside as unconstitutional.  County clerks throughout the state in conformance with the court’s opinion must now issue marriage licenses for same-sex couples.

Justice Baxter’s Dissent

Of course, I agree much more with this dissent than I do the majority opinion.  I believe Justice Baxter has the better legal and political argument.  Some excerpts from his dissent:

In reaching this decision, I believe, the majority violates the separation of powers, and thereby commits profound error.

Only one other American state recognizes the right the majority announces today.  So far, Congress, and virtually every court to consider the issue, has rejected it.  Nothing in our Constitution, express or implicit, compels the majority’s startling conclusion that the age-old understanding of marriage — an understanding recently confirmed by an initiative law — is no longer valid.  California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow.  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.

I think this argument is quite compelling.  Nothing in California’s current constitution compels the majority’s conclusion.  Nothing in the history of California’s constitutional jurisprudence supports such a conclusion, by the majority’s own admission.  And, as I have pointed out, Justice Baxter agrees that the current domestic partner statutes adequately protect same-sex couples.   And, the radical change and rewriting of marriage should, if at all, be accomplished at the ballot box, not the bench.

The question presented by this case is simple and stark.  It comes down to this:  Even though California’s progressive laws, recently adopted through the democratic process, have pioneered the rights of same-sex partners to enter legal unions with all the substantive benefits of opposite-sex legal unions, do those laws nonetheless violate the California Constitution because at present, in deference to long and universal tradition, by a convincing popular vote, and in accord with express national policy (see fns. 1, 2, ante), they reserve the label “marriage” for opposite-sex legal unions?  I must conclude that the answer is no.

This is the question in the case:  simple and stark.  He goes on to point out that if left to the democratic process, perhaps the people and their representatives might reach a similar conclusion–but it really should be left to them:

The People, directly or through their elected representatives, have every right to adopt laws abrogating the historic understanding that civil marriage is between a man and a woman.  The rapid growth in California of statutory protections for the rights of gays and lesbians, as individuals, as parents, and as committed partners, suggests a quickening evolution of community attitudes on these issues.  Recent years have seen the development of an intense debate about same-sex marriage.  Advocates of this cause have had real success in the marketplace of ideas, gaining attention and considerable public support.  Left to its own devices, the ordinary democratic process might well produce, ere long, a consensus among most Californians that the term “marriage” should, in civil parlance, include the legal unions of same-sex partners.

And, given California’s recent legislative history, perhaps in time the legislative process would reach the same conclusion.  But, it is the legislative process and the popular opinion of Californian’s themselves that this court has usurped.

Justice Baxter also agrees with my analysis that the majority here has essentially invented a new constitutional right, explicitly contrary to the will of the vast majority of California citizens:

But 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.  Undeterred by the strong weight of state and federal law and authority majority invents a new constitutional right, immune from the ordinary process of legislative consideration.  The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will.

Justice Baxter provides additional analysis which did not occur to me in terms of the court’s overriding of a voter approved initiative:

In doing so, the majority holds, in effect, that the Legislature has done indirectly what the Constitution prohibits it from doing directly.  Under article II, section 10, subdivision (c), that body cannot unilaterally repeal an initiative statute, such as Family Code section 308.5, unless the initiative measure itself so provides.  Section 308.5 contains no such provision.  Yet the majority suggests that, by enacting other statutes which do provide substantial rights to gays and lesbians — including domestic partnership rights which, under section 308.5, the Legislature could not call “marriage” — the Legislature has given “explicit official recognition” (maj. opn., ante, at pp. 68, 69) to a California right of equal treatment which, because it includes the right to marry, thereby invalidates section 308.5.

The majority opinion does not even address this issue.  Justice Baxter concludes that the majority, through legal jujitsu has simply overstepped its judicial authority:

I cannot join this exercise in legal jujitsu, by which the Legislature’s own weight is used against it to create a constitutional right from whole cloth, defeat the People’s will, and invalidate a statute otherwise immune from legislative interference.  Though the majority insists otherwise, its pronouncement seriously oversteps the judicial power . . .

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.  Statutes enacted at the state’s first legislative session confirmed this assumption, which has continued to the present day.  When the Legislature realized that 1971 amendments to the Civil Code, enacted for other reasons, had created an ambiguity on the point, the oversight was quickly corrected, and the definition of marriage as between a man and a woman was made explicit.  (Maj. opn., ante, at pp. 23-36.)  The People themselves reaffirmed this definition when, in the year 2000, they adopted Proposition 22 by a 61.4 percent majority.

I encourage you to read Justice Baxter’s dissent in its entirety.  He raises some very good points, and it is, I believe, more consistent with traditional judicial restraint that what we see here from the majority.

What’s Next?

Good question.  Based on this court’s ruling, I see no basis for the constitutionality of current bigamy statutes.  What about statutes limited marriage in other ways?  Age, degree of familial relationship?

What about the California’s domestic partnership statutes?  Why did the court not strike them down as unconstitutional?  They are, part and parcel, an integral part of this supposed separate but equal discrimination the majority found.  Yet, they speak nothing about this statutory framework.

There is currently a movement for a constitutional amendment to essentially overturn this court’s ruling.  If you are interested in such activities, you can learn more from their website: ProtectMarriage.com.

If history is an indication, at least in California, there is a good chance that this amendment will make the November ballot, and that it will likely win.  Californian’s have a funny way of having the last word on what the clear majority of the citizens have already spoken.  It will be interesting to see how this all plays out.

For those who are old enough, you may remember the political repercussions of the Rose Bird court which was essentially voted out of office when they came up for election.  I have no idea whether there will be such consequences in this case–nor am I advocating any such movement.  Personally, I think judicial positions at the supreme court level should not be politicized.  But, then again, I also don’t think their decisions should be either.

The Church’s statement on the decision was published in the Deseret News.  It is also now on the Church’s Newsroom website:

The LDS Church released the following statement:

“The Church of Jesus Christ of Latter-day Saints recognizes that same sex marriage can be an emotional and divisive issue. However, the church teaches that marriage between a man and a woman is ordained of God and that the family is the basic unit of society. Today’s California Supreme Court decision is unfortunate.”

The News also noted:

The church declined comment on what future action it may take to help challenge the court’s decision. Opponents of the ruling are hoping a planned November ballot measure seeking to amend the state constitution to ban gay marriage will succeed.

The LDS Church was active in urging California residents to ban gay marriage through a public referendum in March 2000. Proposition 22 was designed to prevent formal sanction of same-sex marriages performed in other jurisdictions from gaining future legal recognition on par with traditional marriage. Voters approved the measure, with 61 percent in favor and 39 percent opposed.

Despite the majority’s ruling, there is a Court of Higher Authority, which has, through His representatives has already spoken on this subject:

We, the First Presidency and the Council of the Twelve Apostles of The Church of Jesus Christ of Latter-day Saints, solemnly proclaim that marriage between a man and a woman is ordained of God and that the family is central to the Creator’s plan for the eternal destiny of His children . . .

Husband and wife have a solemn responsibility to love and care for each other and for their children. “Children are an heritage of the Lord” (Psalms 127:3). Parents have a sacred duty to rear their children in love and righteousness, to provide for their physical and spiritual needs, to teach them to love and serve one another, to observe the commandments of God and to be law-abiding citizens wherever they live. Husbands and wives—mothers and fathers—will be held accountable before God for the discharge of these obligations.

Further, we warn that the disintegration of the family will bring upon individuals, communities, and nations the calamities foretold by ancient and modern prophets.

We call upon responsible citizens and officers of government everywhere to promote those measures designed to maintain and strengthen the family as the fundamental unit of society.

There is no overturning this counsel.  We can ignore it.  We can rationalize it away.  We can pretend it just doesn’t exist.  But, in the final analysis, no amount of legal sophistry can or will change immutable and eternal principles.