California's 'judicial fiat' condemned - by judge
'Undeterred by state, federal law, new constitutional right invented'
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Posted: May 15, 2008
7:30 pm Eastern
By Bob Unruh
© 2008 WorldNetDaily
http://www.worldnetdaily.com/index.php?fa=PAGE.view&pageId=64376
Two members of the California Supreme Court, which earlier today ruled the
state cannot prevent homosexuals from "marrying," have condemned the
decision as "judicial fiat."
"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," said the dissent written by Associate Justice Marvin R.
Baxter
and joined by Associate Justice Ming W. Chin.
"Undeterred by the strong weight of state and federal law and authority,
the
majority invents a new constitutional right," the opinion said.
The majority opinion, written by Chief Justice Ron George, who was
appointed
to his office by former Republican Gov. Pete Wilson, trashed society's
traditional and biblical institution of marriage, opening up the option
for
same-sex duos to be "married" because retaining the historic definition
"cannot properly be viewed as a compelling state interest."
L to R: Carlos R. Moreno, Joyce L. Kennard, Kathryn Mickle Werdegar,
Ron M. George, Ming W. Chin, Marvin R. Baxter and Carol A. Corrigan of the
California Supreme Court
The majority in the 4-3 decision explained the justices based their
reasoning on several factors, including society's feelings about, or
perception of, the issue.
Joining George in the majority opinion were Carlos R. Moreno, Joyce L.
Kennard and Kathryn Mickle Werdegard. Carol Corrigan wrote a separate
dissent.
The court found that excluding homosexuals from "marriage" is not needed,
and would, in fact, "impose appreciable harm on same-sex couples and their
children," the court said.
"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," the court said.
"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'."
(Story continues below)
Officials with the American Family Association of Pennsylvania pointed out
the problems that now have been created by the decision.
"The judges found there is a 'fundamental right to form a family,' where
does such a statement end? How is family defined? Are families formed by
incest between a father and his daughter, an uncle and niece, or by group
marriages, one man three women, one women 10 men - how is a family formed
under such a ludicrous court decision?" the group asked.
"These California judges have created chaos of marriage in that state and
it
will have ramifications across the country. There is no residency
requirement in California nor do they have a Massachusetts-type law that
says if your marriage is not legal in your state, you cannot marry here.
The
door has been opened for Pennsylvania's and all other state's Defense of
Marriage Acts to be challenged. Same-sex commitment ceremonies in
Philadelphia in November and State College in March have laid the
groundwork
for just such a challenge," the group said.
The opinion came in response to a series of lawsuits filed against the
state
after voters in California voted 61-39 percent that marriage should be
recognized only between a man and a woman, and then the mayor of San
Francisco started issuing marriage licenses to same-sex duos.
The court stopped him from doing that, but only because the question had
not
been properly submitted, which it now apparently has been.
"I cannot join the majority's holding that the California Constitution
gives
same-sex couples a right to marry," the dissent said. "In reaching this
decision, I believe, the majority violates the separation of powers, and
thereby commits profound error.
"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,"
Baxter continued. "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."
Baxter said the majority's logic was troubling.
"The majority relies heavily on the Legislature's adoption of progressive
civil rights protections for gays and lesbians to find a constitutional
right to same-sex marriage. In effect, the majority gives the Legislature
indirectly power that body does not directly possess to amend the
Constitution and repeal an initiative statute."
He explained: "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 . they reserve the label 'marriage' for opposite-sex legal unions?
I
must conclude that the answer is no."
He said the people have every right to adopt laws changing the definition
of
marriage. But that didn't happen. Instead, it was a "judicial fiat," he
concluded. "I cannot join this exercise in legal jujitsu."
"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."
The dissent itself confirmed the worst fears emanating from Pennsylvania:
"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?" the
Baxter
opinion said.
Further, Baxter continued, "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."
House Speaker Nancy Pelosi, an ardent supporter of homosexual activism,
said
she welcomed the "historic decision."
"I have long fought against discrimination and believe that the state
constitution provides for equal treatment for all California's citizens
and
families," she said.
However, a flood of comments from pro-family groups landed on the other
side.
"In 1863, Abraham Lincoln said in the Gettysburg Address that ours is a
government 'of the people, by the people and for the people.' Well, not in
the state of California, where four imperious and unelected justices have
just overridden the will of the voters," said James Dobson, chief of Focus
on the Family, a Christian publishing and broadcast empire.
"In 2000, Proposition 22 defined marriage as being exclusively between one
man and one woman; the initiative passed by an overwhelming margin of 61
to
39 percent. That emphatic expression of the will of the people has now
arrogantly been declared null and void," he said.
"It will be up to the people of California to preserve traditional
marriage
by passing a constitutional amendment in the November elections," he said.
"Only then can they protect themselves from this latest example of
judicial
tyranny."
At Americans for Truth, officials now are lobbying for a Federal Marriage
Amendment, saying only that "would establish a national standard
preserving
the historic institution of marriage as one-man, one-woman."
A WND reader said, "The appropriate response from California citizens
should
be to remove these clowns from office and appoint people who aren't
influenced by rich perverts. The majority of Californians have already
spoken in the polls, marriage is for men and women. Now they need to let
the
politicians know that they mean business."
Another WND reader was brief in his concern:
"Four vs. 4,618,673. The four won," he said.
"The California Supreme Court has engaged in the worst kind of judicial
activism today, abandoning its role as an objective interpreter of the law
and, instead, legislating from the bench. It's absurd to suggest that the
framers of the California state constitution could have ever imagined
there'd be a day when so-called 'same-sex marriage' would even be
conceptualized, much less seriously considered. If anyone then had
suggested
the absurd notion, early Californians would have laughed their smocks
off,"
said Matt Barber, policy director for cultural issues at Concerned Women
for
America.
"So-called 'same-sex' marriage is counterfeit marriage. Marriage is, and
has
always been, between a man and a woman," he said.
"The people of California decided eight years ago that marriage in our
state
will be defined as between one man and one woman. Four arrogant, elitist,
activist judges decided that they know better than the people how marriage
should be defined," said Karen England, of Capitol Resource Institute.
"It is certainly disappointing that the court, in declaring a right to
same-sex marriage in the California Constitution, has shown an outrageous
lack of respect for a majority of California voters and ignored a long
history of legal precedent supporting traditional marriage," said legal
counsel Jennifer Monk of Advocates for Faith and Freedom, one of the
organizations that worked on the case.
California Assemblyman Bob Huff, R-Diamond Bar, said, "With the passage of
Proposition 22, the voters of California agreed that marriage is 'between
a
man and a woman.' PERIOD. The court's decision today is further proof that
some activist judges value their own beliefs over the will of the people."
"This ruling defies logic. It is a gross departure from the rule of law.
It
is outrageous. Traditional marriage is common sense. Yet, this decision is
nonsense," said Mathew Staver, chief of Liberty Counsel, which also worked
on the case.
The ruling disposed of several individual challenges to California's
marriage statutes that arose after the state's voters, by a margin of 4.6
million to 2.9 million, adopted a law that states California would
recognize
only marriages involving one man and one woman.
That same plan now is being proposed for a constitutional amendment by the
ProtectMarriage.com campaign, a broad-based coalition of pro-family
organizations, churches and individuals.
That's now needed, the campaign says, because even though voters
overwhelmingly passed the Proposition 22 law, that was a "regular statute"
within the outlines of the California Family Code. But politicians and
judges have been bypassing it, and chipping away at it, to ignore the will
of the voters, and now the courts have gutted it entirely.
A constitutional amendment, however, cannot be changed by either
legislative
or judicial "fiat." The campaign already has collected enough signatures
to
be on this fall's ballot, and only awaits verification from the state.
The battle dates to 1996, when then-Assemblyman William J. "Pete" Knight
introduced legislation to protect traditional marriage. It failed by one
vote in the state Senate.
He later led the Protection of Marriage Coalition to gather more than
600,000 petition signatures and qualify Prop 22 for the ballot, an effort
that was approved by 61.4 percent of the voters in 2000.
It reads, "Only marriage between a man and a woman is valid or recognized
in
California."
State lawmakers and judicial activists, however, have been moving to
undermine that vote ever since.
Rev. Rob Schenck, of the National Clergy Council, called for voters to be
involved not only in pursuing a constitutional amendment, but ejecte a few
black robes from the courthouses.
"California citizens can take bad judges off the bench by voting no when
their names appear on the ballot," he said. "Citizens must get directly
involved in choosing who will sit on their highest state courts."
Randy Thomasson, of Campaign for Children and Families, said the court
simply "exchanged the rule of law for the rule of unbridled power to
destroy
all that is good and sacred."
"Gov. [Arnold] Schwarzenegger should resist any temptation to sign any
bill
opposing the people's vote on marriage," he suggested.
--
CB
Romans, Chapter 1, verse 21:
21Because that, when they knew God, they glorified him not as God,
neither were thankful; but became vain in their imaginations, and
their foolish heart was darkened. 22Professing themselves to be wise,
they became fools, 23And changed the glory of the uncorruptible God
into an image made like to corruptible man, and to birds, and
fourfooted beasts, and creeping things.
Go ahead homo, compare your self to nature and all its beasts
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