The California Supreme Court's Supremely Bad Decision
Posted by: Chuck DeVore | 05/15/2008 11:00 PM
The California State Supreme Court, lead by Chief Justice Ron George, repealed California law stating that marriage is between a man and a woman as set forth by both the Legislature and the people through the passage of Prop. 22.
The Court's ruling is breathtaking for its overreach. Using words like "dignity" (23 times), "liberty" (34 times), and "privacy" (37 times) to describe same sex partners full right to marry, the Court overturned millennia of experience and more than 150 years of state law precedence. (For the ruling, see: http://www.courtinfo.ca.gov/opinions/documents/S147999.PDF.) In so doing, their strained justifications threw the door wide open to polygamous and incestuous marriage. How? By using the flawed logic that marriage is none of the government's business insofar as marriage should be afforded to all to afford people privacy, liberty and dignity. The same weak logic can be applied to the "plural" marriages of the Fundamentalist LDS cult in Texas or to a devout Muslim citizen of Saudi Arabia who wishes to emigrate to California with his four wives. In fact, due to the equal protection provisions of the Fourteenth Amendment, both a Fundamentalist LDS cult member and a devout Muslim could argue that their First Amendment right to free exercise of religion are being violated by any restriction on polygamy - after all, their "dignity," "liberty," and "privacy" would be violated otherwise.
Allow me to close my comments with two political observations.
First, the Court's sweeping ruling is likely to ignite support for the California Marriage Protection Act, a constitutional ballot initiative that would overrule the Court's decision that should appear on the ballot this November. (See: http://www.protectmarriage.com/.) This, in turn, may have an impact on other California races, from the President on down to the legislative races. In this, liberal Democrats should be wary of what they wish for...
Second, I find it ironic to see commentators describe the Court as conservative since the majority of its members were appointed by Republican governors. Lest we forget, there is a simmering divide in the Republican Party over whether the label "conservative" includes social policy, or only tax and fiscal policy. Chief Judge Ron George was first appointed by Gov. Deukmejian, then appointed chief justice by Gov. Wilson. Justice Ron George has had a long history of very liberal rulings long before the same sex marriage ruling. In fact, back in 1997, I drafted a resolution opposing Justice Ron George for his election in 1998. It passed the Orange County Republican Party Central Committee, then stalled when it hit the California Republican Party. It was argued that Justice George was a Republican, so the Party should support him. The reason for my opposition to Judge George in 1997 was his ruling in American Academy of Pediatrics v. Lungren which overturned a California law requiring parental consent for minors to obtain abortions ("privacy" of the minor girl was the reason cited in that case too). Other bad rulings already made by Justice George at that time included: a pro-criminal decision in People v. Superior Court (Romero), three anti-private property rights decisions in Ehrlich v. Culver City, Smith v. Fair Employment and Housing Commission, and Alcarez v. Vece, a pro-public union decision in Loder v. City of Glendale, and an anti-business decision in Stevenson v. Superior Court.
Of course, there is the remote possibility that Judge George's terrible ruling really is a Republican plot in the vast right wing conspiracy to boost conservative turnout so much that McCain wins California and is elected President in 2008 - stranger things have happened in the world of politics.
Just for old time's sake, I've reprinted below the 1997 resolution that passed the OC Republican Party Central Committee only to fail at the California Republican Party convention. It was authored by me and my long time friend, Fred Whitaker, a respected Orange attorney who should someday be on the California Supreme Court.
The Court's ruling is breathtaking for its overreach. Using words like "dignity" (23 times), "liberty" (34 times), and "privacy" (37 times) to describe same sex partners full right to marry, the Court overturned millennia of experience and more than 150 years of state law precedence. (For the ruling, see: http://www.courtinfo.ca.gov/opinions/documents/S147999.PDF.) In so doing, their strained justifications threw the door wide open to polygamous and incestuous marriage. How? By using the flawed logic that marriage is none of the government's business insofar as marriage should be afforded to all to afford people privacy, liberty and dignity. The same weak logic can be applied to the "plural" marriages of the Fundamentalist LDS cult in Texas or to a devout Muslim citizen of Saudi Arabia who wishes to emigrate to California with his four wives. In fact, due to the equal protection provisions of the Fourteenth Amendment, both a Fundamentalist LDS cult member and a devout Muslim could argue that their First Amendment right to free exercise of religion are being violated by any restriction on polygamy - after all, their "dignity," "liberty," and "privacy" would be violated otherwise.
Allow me to close my comments with two political observations.
First, the Court's sweeping ruling is likely to ignite support for the California Marriage Protection Act, a constitutional ballot initiative that would overrule the Court's decision that should appear on the ballot this November. (See: http://www.protectmarriage.com/.) This, in turn, may have an impact on other California races, from the President on down to the legislative races. In this, liberal Democrats should be wary of what they wish for...
Second, I find it ironic to see commentators describe the Court as conservative since the majority of its members were appointed by Republican governors. Lest we forget, there is a simmering divide in the Republican Party over whether the label "conservative" includes social policy, or only tax and fiscal policy. Chief Judge Ron George was first appointed by Gov. Deukmejian, then appointed chief justice by Gov. Wilson. Justice Ron George has had a long history of very liberal rulings long before the same sex marriage ruling. In fact, back in 1997, I drafted a resolution opposing Justice Ron George for his election in 1998. It passed the Orange County Republican Party Central Committee, then stalled when it hit the California Republican Party. It was argued that Justice George was a Republican, so the Party should support him. The reason for my opposition to Judge George in 1997 was his ruling in American Academy of Pediatrics v. Lungren which overturned a California law requiring parental consent for minors to obtain abortions ("privacy" of the minor girl was the reason cited in that case too). Other bad rulings already made by Justice George at that time included: a pro-criminal decision in People v. Superior Court (Romero), three anti-private property rights decisions in Ehrlich v. Culver City, Smith v. Fair Employment and Housing Commission, and Alcarez v. Vece, a pro-public union decision in Loder v. City of Glendale, and an anti-business decision in Stevenson v. Superior Court.
Of course, there is the remote possibility that Judge George's terrible ruling really is a Republican plot in the vast right wing conspiracy to boost conservative turnout so much that McCain wins California and is elected President in 2008 - stranger things have happened in the world of politics.
Just for old time's sake, I've reprinted below the 1997 resolution that passed the OC Republican Party Central Committee only to fail at the California Republican Party convention. It was authored by me and my long time friend, Fred Whitaker, a respected Orange attorney who should someday be on the California Supreme Court.
A Resolution Calling to Oppose Confirmation of Certain California Supreme Court Judges.
WHEREAS, The California Supreme Court overturned a 1987 law requiring parental consent for minors to obtain abortions.
WHEREAS, The law in question was a carefully written to meet the U.S. Supreme Court's strict guidelines for valid parental consent legislation.
WHEREAS, Chief Justice George, Justice Chin, Justice Kennard, and Justice Werdegar ruled that the parental consent law violated the "autonomy privacy rights" of minor girls. Further that a minor girl's uninhibited right to an abortion "is so central to the preservation of her ability to define and adhere to her ultimate values regarding the meaning of human existence and life,...we conclude that a minor who is pregnant has a protected privacy interest under the California Constitution in making the decision whether to continue or to terminate her own pregnancy." Yet, almost a year earlier, the court ruled that the same law was valid.
WHEREAS, Lower courts in California blocked enforcement soon after its passage in 1987, claiming that girls as young as 13 or 14 possess the necessary maturity and rationality to make informed decisions about abortion. Yet, under the law do not have maturity and rationality for ear piercing and medical treatment without parental consent until age 18.
WHEREAS, These arguments, aside from ignoring common sense and human experience, are irrelevant to the issue of constitutionality which is supposed to be the only reason for the court to overturn legislation.
WHEREAS, A parent's right to direct his or her child's upbringing is among the most basic of human rights.
WHEREAS, Justice Mosk, in dissent, pointed out that according to the ruling, the privacy rights for minor girls would reach to those who were as young as nine years old.
WHEREAS, Justice Brown, noted in her dissent that the California Constitution protects "a parent's interest in directing his child's upbringing" and that the "liberty interest of a minor is qualitatively different than that of an adult, being subject both to reasonable regulation by the state and to an extent not permissible with adults."
WHEREAS, It is illogical and inconsistent to require that minors obtain parental permission for aspirin at school, tattoos, tanning salons, body piercing, drivers' licenses, etc., but not for a dangerous and invasive procedure like an abortion.
WHEREAS, This Court's judicial activism is reminiscent of the Rose Bird Court when, the rule of law in California succumbed to the whim of four justices occupying seats on its highest court.
THEREFORE, BE IT RESOLVED that the California Republican Party joins the Republican Party of Orange County in calling upon itself and all those of good will to actively oppose confirmation for any California State Supreme Court Justice who voted to overturn the 1987 law requiring parental consent for minor girls to obtain abortions.
Cosponsors:
Fred M. Whitaker, Member
Chuck DeVore, Member
CATEGORY:
California Stuff
Jubal, that is one of the best analyses I have read describing Sheriff Hutchens flawed CCW policy. She...
Charles,
you're a member of a party that hasn't held a majority in the Assembly since 1996. You, yourself, in the middle of Orange County, could not manage to convince the voters of your hometown of Irvine to elect a Republican majority to the Irvine City Council. You only hold your seat through one of the most egregious gerrymanders in our Republic's history. By what standard should we seriously entertain your opinion about a matter that affects you not in the least?
Pardon me "cabana" I was not aware that being out of power meant that my observations on truth and justice were irrelevant. I guess Abraham Lincoln was wrong, then, when he ran for President in 1860 after only winning a single term in Congress and losing every other campaign in which he ran.
That said, why don’t you check back in this November after the elections and make that same observation. You just might be singing a different tune.
All the best,
Chuck DeVore
California State Assemblyman, 70th District
www.ChuckDeVore.com
I might be..but ex poste facto laws withstanding, I don't think so.
I am honored to belong to a Party that still has principled people like Chuck DeVore. Chuck does not stick his finger in the wind or see what is "popular"; He governs with a conservative bent and does not concern himself with that others think.
Hats Off to Chuck !!
PS Chuck is the only one in our Party or the entire Legislature who is pushing the ""Greenest"" Energy around, Nuclear Energy
All seven members of the California court have been confirmed by the voters. Kennard -- confirmed 2006 with 74.5% Corrigan -- confirmed 2006 with 74.4% Werdegar -- confirmed 2002 with 74.1% Moreno -- confirmed 2002 with 72.6% Baxter -- confirmed 2002 with 71.5% George -- confirmed 1998 with 75.5% Chin -- confirmed 1998 with 69.3%
What's your point, Cabana? That without any organized opposition at all Supreme Court justices will sail to confirmation by the people? Of course, Chief Justice Rose Bird and her colleagues were bounced a few years back, so it can be done.
All the best,
Chuck DeVore
California State Assemblyman, 70th District
www.ChuckDeVore.com
Chuck:
Ignore Cabana. His comments the past few days have had the intellectual heft of a smiley face.
Go Assemblyman Chuck Devore! You will have our support in removing anti-family judges in California.
Chuck, stand firm. There are many strong who support great leaders like you. We are only getting started.
It only took one little stone and one small boy to slay the Giant.
Storm the forts of darkness, bring them down, bring them down."
I think that decision was wrongly decided. Nevertheless, here are some thoughts for my fellow conservatives.
Patrick Henry said that government is a necessary evil, but society is a great good. Government is necessary to protect lives and property. But society is not government.
Conservatives know this. We know that liberal "compassion" is actually "coercion". Liberals simply "outsource" their compassion to government, where it becomes corrupted and coercive.
Conservatives know that marriage and family must be promoted because they are a great good, that erosion of the family leads to poverty and crime.
David Frum, in his book "Comeback" says that erosion of the traditional family is not the problem, it is the symptom.
Outsourcing family values to government is to try the easy way out. Values are the province of society, and responsibility for those values lies with each of us.
If we want to promote family values, then maybe it is time for society to take its job back.
Dear Chuck DeVore:
As I read your post, and think about the recent passage of AB777, do you think that if someone filed a lawsuit against AB777 since it is not included in the California Constitution, that it too could be thrown out?
"...Assemblymen Chuck DeVore and Van Tran and state Sen. Tom Harman say the Supreme Court ruling goes against the will of the people, who approved Proposition 22 in a landslide vote.
“Proposition 22 consists of the clearest 14 words in our state law. There is no ambiguity here; the intent of California voters is clear and overwhelming,” Tran said. “I will fight this kind of judicial activism vigorously and continue to fight for marriage as only that between a man and a woman.”
DeVore said he has read the entire ruling and thinks the way the judges justified their opinion — by citing the rights to privacy and equal protection under the law — will strip the state of its power to ban “polygamous marriage or incestuous marriage since, using the court’s own arguments, these alternative arrangements do no harm to traditionally married couples.”
http://www.dailypilot.com/articles/2008/05/16/politics/dpt-gaymarriage05162008.txt
We need to give Ron George + the other members who voted with the majority the Rose Bird treatment. They deserve nothing less for this misdirected decision.
As someone with a libertarian point of view on this issue I believe that Republicans are going to be on the losing side of this issue if they push too hard. I don't see the outrage among Californians that even I expected by now. The fact that six out of the seven were Republican appointees makes the Republican argument pretty weak. I believe most Democrats and a sizable minority of Republicans are going to vote no on this issue in November.
Anon 1:42 - I think you underestimate that element of the Democratic party which is fiscally liberal and socially conservative. This is an argument worth raising and has a broader base than you think. Don't forget that Prop 22 passed by a convincing margin . . . our electorate has not shifted that quickly over the past five years . . .
It is too bad that all your efforts to get signatures were in vain because now the Secretary of State has to throw out your tired old initiative because the Court's decision changes the premise of the whole amendment:
"Amends the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: The measure would have no fiscal effect on state or local governments. This is because there would be no change to the manner in which marriages are currently recognized by the state."
The Court's direction that the State now recognize same-sex marriage means that this amendment would change "the manner in which marriages are currently recognized by the state".
I'm afraid Secretary of State Bowen will have no choice but to dump those signatures and tell the Eager Beavers to go forth and try again....in 2010.
Can same-sex couples marry in California?
Yes. On May 15, 2008, the California Supreme Court ruled that barring same-sex couples from marriage is unconstitutional. Beginning as soon as June 16, same-sex couples will be able to marry in California.
Can the court’s decision be appealed?
No. The California Supreme Court has the final say in cases brought under the California Constitution, like this case, and there can be no more appeals.
Does the court’s decision affect the rights of heterosexual couples?
No. The rights of heterosexual couples to marry and the rights and responsibilities of those who are married remain exactly the same. The decision simply ensures equality and fairness for same-sex couples.
Does this ruling require religious groups or clergy members to marry same-sex couples?
No. The court’s decision said the government may not discriminate against same-sex couples by barring them from civil marriage – a legal institution established and regulated by the government. Religious groups and clergy members remain free to recognize or refuse to recognize marriages within their religion as each sees fit. While some faiths do not permit same-sex couples to marry within that faith, a growing number do. As a result of the court’s decisions, same-sex couples may choose to be married by a clergy person in a welcoming community of faith or by a civil servant such as a judge or authorized deputy.
Should we get married now?
Marriage is a serious legal and personal commitment that should not be entered into lightly. Before getting married, couples should educate themselves about the legal consequences of marriage, in addition to other considerations.
Same-sex couples also face some additional considerations that heterosexual couples do not face, due to discrimination by the federal government as well as by a number of states. Deciding whether to marry is an important decision for everyone, gay or straight, but lesbian and gay couples have to be prepared for and be willing to take on those additional challenges.
A period of legal uncertainty is likely. For example, if you marry in California, you cannot be certain whether your marriage will be respected if you live in, travel to, or move to a state that has laws or constitutional amendments limiting marriage to heterosexual couples.
In addition, current federal law prohibits the federal government from recognizing marriages of same-sex couples for purposes of the many federal rights and benefits given to married heterosexual couples, such as the right to file joint federal income taxes and the right to social security benefits as a surviving spouse. Being excluded from these federal protections, and often state protections as well, is a serious hardship and can cause significant legal problems.
Important Note: Binational couples in which one member does not have permanent legal resident status in this country and anyone serving in the U.S. military should consult with an attorney with expertise in these areas of law before getting married.
If we’re already in a registered domestic partnership in California, do we have to dissolve our domestic partnership before we can marry?
No. The California domestic partnership statutes permit an individual to be both married and in a registered domestic partnership, so long as it is to the same person. In addition, there may be legal protections that are available through domestic partnership but not through marriage. For example, some states that will not honor marriages of same-sex couples may honor domestic partnerships.
Do you have to be a California resident to marry in California?
No. There is no residency requirement to marry in California.
If my partner and I are from another state and marry in California, will our marriage be valid in our home state?
If you live in another state and get married in California, you will be legally married. However, depending on where you live, your home state may not respect your marriage. Many states have passed discriminatory marriage laws, and in those states, state and local governments likely will not respect your California marriage. But even in those states, it is highly likely that at least some private businesses and other private third parties will respect your marriage – particularly those that already recognize same-sex couples through domestic partnership or a similar system.
Marriage is a serious legal decision, and same-sex couples face additional challenges and questions because of continuing discrimination against married same-sex couples by the federal government and many states. We urge couples who are considering getting married in California to proceed with caution. Before getting married in California, you should educate yourselves about the law in your state and, if possible, consult an attorney about the best way to protect your relationship based on your circumstances.
Can we file lawsuits if our marriages are not respected in other states or by the federal government?
If you feel you have been discriminated against, please contact one of the LGBT legal organizations listed on this document. We can help you figure out what options you have to protect your rights. Some types of unfair treatment can be the basis of a lawsuit, and other times the unfairness may not be suitable for a court to address. Even when litigation is an option, it is not the only option. It is always necessary to weigh the chances of success or failure because bad results in lawsuits can cause set backs and hurt our entire community. We want to increase the chances of winning overall, so it is critical that we work together to have a carefully planned strategy. Together, we can win!
What do we have to do to marry in California?
First you need to get a marriage license from the office of the Registrar-Recorder/County Clerk of any California county. You can get a license application from most counties’ websites and complete it in advance, or complete it in the county clerk’s office. Both of you must go together to the county office and present a government-issued picture ID and proof that you are over 18 years old. (If either or both is younger than 18, different procedures apply.) You’ll need to pay the license fee, which varies by county but generally is less than $100. The license will be valid for 90 days and your marriage can be performed anywhere in California. Neither a blood test nor a health certificate is required. Call ahead or visit the county’s website to learn the hours and locations of the county offices that issue licenses.
Who can marry us?
In California, clergy members, active and retired judges and court commissioners, and the Commissioner and Deputy Commissioners of Civil Marriages are authorized to perform legal marriages. The Commissioner and Deputy Commissioners of Civil Marriages perform marriage ceremonies by appointment at designated county offices. There is a fee, which generally is less than $50. Call ahead or visit the county website for more information.
Any couple wishing to marry can also have a friend deputized to perform their marriage ceremony through a county “Deputy Commissioner for a Day” program. If you choose this option, you will need at least two months advance notice and the person to be deputized to perform your ceremony will have to pay a fee and visit the county office in person to be sworn in. Visit the county website to see if your county has this program. If it does not, check whether a nearby county will deputize an out-of-county resident.
The person who performs your ceremony must complete and sign your marriage license after the ceremony. In addition, at least one witness 18 years old or older must sign the marriage license.
The license then becomes your marriage certificate, which has to be returned promptly to the county for filing.
What happens if we marry in California and then wish to divorce?
The only legal way to end a marriage is to get a divorce. If you marry in California and live in California, you can divorce by filing a petition with a California court. However, if you move to another state, or if you already live in another state, getting a divorce could be difficult. Currently, the only state other than California in which same-sex married couples have an established right to divorce is Massachusetts; however, Massachusetts has a one-year residency requirement before a person can petition a Massachusetts court for a divorce. States with civil unions or comprehensive domestic partnerships, like Connecticut, New Hampshire, New Jersey, Oregon, and Vermont, may also allow married same-sex couples to divorce, but those states also have one-year residency requirements. That means that at least one spouse must be a resident of the state for a year prior to the divorce.
Couples who are unable to obtain a divorce remain legally married. Therefore, being unable to divorce may cause serious legal problems and complications for same-sex couples who find themselves in this situation.
Could right-wing forces take away the freedom to marry at the ballot box in California?
Yes. Because the court based its decision on rights guaranteed by the California Constitution, right-wing groups are trying to amend our state Constitution to eliminate these fundamental constitutional protections and take away the basis for the decision.
These groups, which have received significant funding from out-of-state right-wing organizations, are placing an initiative on the November 2008 ballot that will ask voters to amend the California constitution to reverse the court’s decision and deny gay and lesbian couples the freedom to marry.
Already, many state leaders are expressing their opposition to this proposed constitutional amendment. For example, in a public statement on April 11, 2008, Governor Schwarzenegger stated that an initiative to amend the California Constitution to ban gay and lesbian couples from marriage was “a waste of time,” adding “I will always be there to fight against that. It will never happen.”
We agree with Governor Schwarzenegger that these outsiders are wasting their time and money trying to turn California into a state that would use its Constitution to take away civil rights and hurt families.
Licenses are given based on an agreed upon list of qualifications. Those characteristics can include any range or criteria including any number of qualities including gender. Other examples include licenses given to someone upon achieving a certain level or expertise or also by demonstrating qualities that qualify the bearer for special status.
For example the limitation of marriage to 2 individuals as opposed to groups of persons, or the age required for a marriage license to be valid are also examples of qualifiers for a license given based on qualities beyond the volitional control of the individual. Arguing that sexual orientation (whatever that is) is comparable to other characteristics such as gender and ethnicity is false. Even if it were, it would not supersede or negate the necessity of separate genders for a marriage to be valid.
Licenses are the expression of public will. The qualities necessary to obtain them are spelled out clearly. It is not rational to argue that a license should be expanded to other groups outside of the intended definition simple because it is discriminatory.
BY DEFFINITION A LICENSE IS DESCRIMINATORY!!!
A license creates a separate status for someone.
Terms of licenses are items that good people can disagree about and should debate in the public forum of competitive ideas, and through representative government, and the process of initiative / referendum, the people can express some degree of consensus on social structures, namely those that relate to licenses.
The court is tearing down both the moral fabric and the legislative legitimacy of the Republic.
The decision removes from the public sphere issues of conscience that affect us all. It places sensitive and complex decisions in the hands of a special class of elites who dictate directives to the populous. It undermines standards of family and community. It degrades incentives for and qualitative standards of marriage. It eliminates criteria necessary to encourage and develop good behavior and tough choices like monogamy, committed male/female relationships. It sets a precedent that redefining laws can be done on a whim based on opinion, overriding the long and arduous and all important safeguard layers of establishing law in the first place.
Requiring two distinct genders consent to marry, in order to qualify for a valid marriage has no relation to sexual orientation, sexual practices, sexual identity, gender identity, or any other non measurable externality. It’s about actual gender combination, not gender perception or sexual orientation.
This is primary to the difference between the false claims of the pro homosexuality advocacy movement, and those who recognize the legitimate directives of government.
As an aside, sexual orientation is not provable or measurable. It cannot be quantified.
How can someone prove their sexual orientation? You may say, or show, or claim behaviors that lead others to believe certain claims, but there is no way to prove such a thing. A person can change their claim to their orientation multiple times or change the claim on a whim. How can the law allow for such instability, uncertainty, and irrelevance? So-called sexual orientation is immeasurable and falls outside the realm of government.
In complete contrast, gender is in fact measurable, on a genetic, chromosomal, and scientific level. The very makeup of a human encodes the distinctive differences between a male and a female.
In essence, those who see themselves as homosexual in orientation or who practice same gender sex acts are totally free to get married under the existing law. A self identified homosexual is free to marry someone of the opposite gender who can have any type of "sexual orientation" imaginable. Marriage does not specifically relate to restricting or conditioning upon sexual desires, proclivities, or identity.
A Homosexual person can marry; they simply must marry someone of the opposite gender.
That protects the individual right of any person to receive the license. This point provides a way in which both the interests of the individual and those of the collective can be secured.
If someone doesn't like being restricted to committing in matrimony to the opposite gender then they fall outside the norms and ideals of society and are free to live their lives without any legal impediment to their choices.
For the political positivist logic may not matter, but for those who prefer thinking, there are no entitlements, no deserved positive actions that must be taken for any individual or group, save their security and freedom from persecution is childish and illogical to argue that a failure to extend a license to some group outside of the defined parameters of the license is equitable to persecution. Persecution and Standards are not synonymous even to a positivist.
Beam me up Scotty!
A well stated case, Mr. Spock. You nailed the crux of the issue when you wrote:
"Requiring two distinct genders consent to marry, in order to qualify for a valid marriage has no relation to sexual orientation, sexual practices, sexual identity, gender identity, or any other non measurable externality. It’s about actual gender combination, not gender perception or sexual orientation."
All the best,
Chuck DeVore
California State Assemblyman, 70th District
www.chuckdevore.com
Ray Haynes states that Gay Marriage is all Mike Schroeder's fault (h/p to the Flash Report, Yay Jon!):
I Hate to Say It
by Ray Haynes - State Capitol (bio) (email)(print) 5-15-2008 5:21 pm
...but I told you so.
In 1998, I was appointed Chair of the Republican Party's Judicial Evaluation Committee. Specifically, the committe was asked to evaluate the Justices and Judges up for election in 1998. The most public individual up for election that year was Chief Justice Ron George, who, through a set of very ugly legal maneuverings, was able to reverse the decision of the California Supreme Court prohibiting abortions for minors without parental consent. George was not content to allow the decision of the then Lucas Court affirming the law requiring parental consent to stand. In his first act as the Chief Justice, right after the retirement of Chief Justice Lucas, George, abusing his power as the new Chief Justice, went about acting to reverse the decision. He had no scruples about ignoring the tradition of the court, stare decisis, or judicial restraint to promote his own version of how society should be organized.
Then Republican Party Chair Mike Schroeder stacked committee to support Chief Justice George (after he appointed me chair), but I made my case to the committee. I argued that a Justice who would ignore the tradition of the court (Justice George used his power as Chief Justice to reverse the Lucas decision simply because the personnel on the court had changed, which had never been done in California before that time), or stare decisis or principles of judicial restraint (the dissenting opinions of Justices Baxter and Rogers Brown demonstate how tortured the majority decision had to be to reverse the Lucas decision) could not be trusted to be a justice that would exercise judicial restraint in the future. I was overruled by the majority of the committee, who felt it was more important to have a justice that was tough on crime, rather than one who knew and respected the role of judges in a constitutional republic.
They were wrong, and Chief Justice George's decision on Proposition 22 is the culmination of his judicial activism. Chief Justice George was then, and is now, a judicial activist, and the fact that he was appointed by Republican Governors doesn't change that fact. It merely points out how foolish some Republican Governors can be. The overriding consideration for judicial appointments (or our support of a judicial candidate) cannot be their support of one or more parts of the Republican agenda, it has to be their view of the role of a judge in our constitutional republic. Judges are not legislators. They don't get to write law. They don't get to use the Constitution as an excuse to substitute their idea of a good law for the law enacted by the Legislature or the people through initiative.
Yet that is exactly what Ron George did in the Prop. 22 case. There is no law anywhere allowing the marriage of homosexuals, yet, not only did the court declare that Prop. 22 violated the State's Constitution, they declare a positive right for homosexuals to marry. That is judicial activism at its worst. This decision is not historical because of its declaration of rights for homosexuals, it is historical because it is the nadir of judicial restraint in California. The Legislature might as well go home, and let the Supreme Court do the Legislature's job. According to Ron George, the Supreme Court is obviously better at that job.
We should have kicked him out in 1998. He deserved it then. We'll have another chance in 2010 (if he doesn't quit before then). Maybe this time, the Republican Party will do the right thing, and oppose this guy, no matter who appointed him.
I hate when somebody blows the cover on one of our sleeper moles in the Gay Old Party.
You see? We even have our agents on the ditorial board of the OC Register:
The California Supreme Court decided Thursday that California's laws defining marriage as a union between a man and a woman violate the state constitution and that same-sex couples must be allowed to enter into legally recognized marriages. The decision is bound to be controversial – and is likely to be contested at the ballot box in November – but it is eminently defensible.
As a practical matter, this decision will have only a limited impact on the legal status of same-sex couples. In 1999 the state Legislature established a domestic-partner registry and conferred many of the legal rights and obligations accruing to married partners to cohabiting same-sex couples. Since then the Legislature has gradually expanded the legal privileges of domestic partners until they are virtually the same as married couples have, including the right to file joint state tax returns.
However, in 2000 California voters enacted a 14-word initiative: "Only marriage between a man and a woman is valid or recognized in California." With its decision Thursday the Supreme Court declared this provision to be unconstitutional and, therefore, invalid.
The 2000 initiative was a statutory initiative, that is, it put a law in place rather than amending the state constitution. Opponents of same-sex marriage have collected signatures for a similar provision that would amend the constitution to permit recognition only of opposite-sex marriages. If it qualifies and passes, it would reverse this decision.
This marriage decision is a departure from tradition, but the high court recalled an earlier decision that also represented such a departure. California had laws prohibiting interracial marriage from before it was a state. Yet in 1948, in its Perez decision, the California Supreme Court decided that such laws were invalid because the right to marry is a fundamental individual right, and that prohibiting people of different races to marry violates this right and violates the principle of equal protection of the laws.
The issues in the current case are not identical, but close enough that this decision is justified as well. Prohibiting same-sex couples from marrying, even though they can have most of the privileges of marriage, is an act of discrimination that is not countenanced under California's constitution.
In our view, the state should have little or no role in defining or regulating so intimate a relationship as marriage. People should be free to call their relationship a marriage if it is loving and committed, and churches should be free to decide whether or not to bless such relationships.
Given the reality that the state has inserted itself into so many aspects of our private lives, however, and that it treats married couples differently from those who are simply cohabiting, this decision was virtually inevitable as an expression of simple fairness.
I'm curious, how many fo you guys who detest the notion of gay marriage so much actually know anyone who is gay? Do you have friends who are gay? Have you ever sat down and talked about this issue with them? How many of you still believe that homesexuality is a choice?
How do you believe this decision will affect your own marriage?
Is The Proposed “Limit on Marriage” Constitutional Initiative Too Late?
The recent California Constitutional Right to Marry case, according to independent analysis, calls into question the currently proposed “Limit to Marry” Voter Initiative Constitutional Initiative. If Secretary of State Debra Bowen places it on the ballot, she would be wise to have the Legislative Analysts’s opinion consider the following cited cases and also discuss the issue with Attorney General Jerry Brown to inquire whether or not the proposed initiative can even be legally placed on the ballot.
California Governor Arnold Schwarzenegger, Assembly member Mark Leno, San Francisco Mayor Gavin Newsome, and Equality California Executive Director Geoff Kors, and one of the main attorneys on the winning side of the marriage case, David Codell would be wise to immediately contact Bowen and Brown to raise the issue of the legality of the proposed initiative so that the voters of California are properly informed that there may be a potential problem in enacting the initiative if it passes this November (assuming it qualifies for the ballot).
As noted in McFadden v. Jordan (1948) 32 Cal.2d 330, 333: “The initiative power reserved by the people by amendment to the Constitution in 1911 (art. IV, s 1) applies only to the proposing and the adopting or rejecting of ‘laws and amendments to the Constitution’ and does not purport to extend to a constitutional revision.”
The proposed initiative appears to now attempt to revise the California Constitution to remove the equal protection that gays and lesbians are now afforded under the California Constitution. With that in mind, the Secretary of State must be aware of the following case:
Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313:
Article XVIII of the California Constitution allows for amendment of the Constitution by the Legislature, or initiative and revision of the Constitution by the Legislature, or a constitutional convention. There is no other method for revising or amending the Constitution. ( Livermore v. Waite (1894) 102 Cal. 113, 117, 36 P. 424 ( Livermore ).)…
“ ‘[A]mendment’ implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.” ( Livermore, supra, 102 Cal. at pp. 118-119, 36 P. 424.) The “revision/amendment analysis has a dual aspect, requiring us to examine both the quantitative and qualitative effects of the measure on our constitutional scheme. Substantial changes in either respect could amount to a revision.” ( Raven v. Deukmejian (1990) 52 Cal.3d 336, 350, 276 Cal.Rptr. 326, 801 P.2d 1077 ( Raven ).) “[A]n enactment which is so extensive in its provisions as to change directly the ‘substantial entirety’ of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also.” ( Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 223, 149 Cal.Rptr. 239, 583 P.2d 1281 ( Amador ).)
According to the In Re Marriage Cases (May 15, 2008) 2008 WL 2051892: “Although our state Constitution does not contain any explicit reference to a “right to marry,” past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution…. In light of the fundamental nature of the substantive rights embodied in the right to marry - and their central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society - the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation. ”
The proposed initiative originally sought to limit the Constitutional right to marry to opposite sex couples and, thus as originally drafted, it was intended to limit the right to marry to a man and a woman. But an amendment can no longer accomplish this. The Right to Marry exists and in light of the recent ruling, the initiative’s unintended consequence is an attempt to revise (as opposed to amend) the Constitution which, as explained in In Re Marriage Cases (May 15, 2008) 2008 WL 2051892, is a fundamental Constructional right to “all individuals and couples, without regard to their sexual orientation.”
“Whether an initiative constitutes an amendment or revision to the Constitution does not necessarily depend on the number of constitutional provisions it affects, but on the nature of the changes it makes. (Grodin et al., The California State Constitution: A Reference Guide, supra, at pp. 303-304.) For a revision to be found, “it must necessarily or inevitably appear from the face of the challenged provision that the measure will substantially alter the basic governmental framework set forth in our Constitution.” See California Assn. of Retail Tobacconists v. State of California (2003) 109 Cal.App.4th 792, 833-834 (quote set forth more fully below).
As Justice Moreno noted in a concurring opinion in Californians For An Open Primary v. McPherson (2006) 38 Cal.4th 735, 788:
Voters can propose amendments to the Constitution that will be placed on the ballot if the requisite number of signatures are obtained, but they may not propose constitutional revisions. (See Cal. Const., art. XVIII, § 3; Raven v. Deukmejian (1990) 52 Cal.3d 336, 349, 276 Cal.Rptr. 326, 801 P.2d 1077.)
See California Assn. of Retail Tobacconists v. State of California (2003) 109 Cal.App.4th 792, 833-834:
Although the electorate may amend the Constitution by initiative (art. XVIII, § 3), a revision of the Constitution may be accomplished only by a constitutional convention and popular ratification (art. XVIII, § 2) or by legislative submission of the measure to the electorate (art. XVIII, § 1). ( Raven v. Deukmejian, supra, 52 Cal.3d at p. 349, 276 Cal.Rptr. 326, 801 P.2d 1077; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 221, 149 Cal.Rptr. 239, 583 P.2d 1281.) It has been suggested “the revision provision is based on the principle that ‘comprehensive changes’ to the Constitution require more formality, discussion and deliberation than is available through the initiative process. [Citation.]” ( Raven v. Deukmejian, supra, 52 Cal.3d at pp. 349-350, 276 Cal.Rptr. 326, 801 P.2d 1077; cf. Legislature v. Eu, supra, 54 Cal.3d at p. 506, 286 Cal.Rptr. 283, 816 P.2d 1309.) The revision/amendment analysis requires the court “to examine both the quantitative and qualitative effects of the measure on our constitutional scheme[, as] [s]ubstantial changes in either respect could amount to a revision. [Citations.]” ( Raven v. Deukmejian, supra, 52 Cal.3d at p. 350, 276 Cal.Rptr. 326, 801 P.2d 1077; Legislature v. Eu, supra, 54 Cal.3d at p. 506, 286 Cal.Rptr. 283, 816 P.2d 1309.) Whether an initiative constitutes an amendment or revision to the Constitution does not necessarily depend on the number of constitutional provisions it affects, but on the nature of the changes it makes. (Grodin et al., The California State Constitution: A Reference Guide, supra, at pp. 303-304.) For a revision to be found, “it must necessarily or inevitably appear from the face of the challenged provision that the measure will substantially alter the basic governmental framework set forth in our Constitution. [Citations.]” ( Legislature v. Eu, supra, 54 Cal.3d at p. 510, 286 Cal.Rptr. 283, 816 P.2d 1309, original italics.)
Therefore Schwarzenegger, Bowen, Leno, and Newsome should use their constitutional powers to obtain an opinion of the Attorney General as to whether the initiative is an amendment or a revision that would revise the equal protection clause as it relates to gays and lesbians.
the activist gay community across this country not only with an Proposition to reinstate the Law that Traditional Marriage (is only between a Man and a women), but that judicial tampering with the Will of the people demands justice be done.
Three elements should be done to change directions!
1. As Meddlesome Nobody said: “We need to give Ron George + the other members who voted with the majority the Rose Bird treatment. They deserve nothing less for this misdirected decision.” This idea needs to MOVE. These justices are activist, it doesn't matter if they are Republican - If Judges don't get their hands spanked by the people they are just going to keep on changes laws on how they interpret the law. This has got to stop.
This would send a message to gay activist across the country that the will of the American People cannot and will not be thwarted.
2. From Ernest Istook: Pretzel Logic Behind Gay Marriage. “The high court ruled that the existence of a “domestic partners” statute compelled it to overturn California’s marriage law and permit same-sex marriages. Otherwise, the court said, it would be a denial of equal protection if same-sex couples could get advantages similar to marriage but not actually be married as opposite-sex couples can.” An initiative NEEDS also be made to Repeal the Domestic Partners Legislation. Since it was use as a basic premise for the Courts Decision.
3. Follow through with the current mode of installing a Constitutional Amendment Regarding Marriage, its definition and it’s traditional universal purpose.
The entire country is waiting to see if California has the guts to changes directions.
1. You may want to think through the consequences of giving the Gay Marriage 4 "The Rose Bird Treatment". Just remember which Republican Governor will get to appoint their replacements and rethink whether you really want to roll the dice on that outcome.
2. You may also want to research the polling on repealing Domestic Partnership protections in Califoria. I'm certain that Randi Thomasson has and has concluded that it would be a waste to time and money. But good luck on that if you actually have a couple of million dollars to throw around on getting paid signature gatherers.
I believe I just heard the entire country yawn.