The California Supreme Court resisted the urge to legislate from the bench today, and upheld the propriety of the amendment process that has declared marriage to be one man-one woman in the Golden State. According to AP:
The California Supreme Court upheld a voter-approved ban on same-sex marriage Tuesday, but it also decided that the estimated 18,000 gay couples who tied the knot before the law took effect will stay wed.
The 6-1 decision written by Chief Justice Ron George rejected an argument by gay rights activists that the ban revised the ‘s equal protection clause to such a dramatic degree that it first needed the Legislature‘s approval.
The court said the people have a right, through the ballot box, to change their constitution.
“In a sense, petitioners’ and the attorney general’s complaint is that it is just too easy to amend the California constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it,” the ruling said.
When the suit against Prop 8 was filed, I thought that the arguments it presented were a real stretch, and I think it’s safe to say that I was right, given that 6 of 7 members of one of the nation’s most liberal supreme courts not only wouldn’t buy them, but said:
Accordingly, we conclude that each of the state constitutional challenges to Proposition 8 advanced by petitioners and the Attorney General lacks merit.
The only dissent came from a justice who thinks his vote on the court outweighs that of California voters. According to the San Francisco Chronicle:
Justice Carlos Moreno, in a lone dissent, said a majority should not be allowed to deprive a minority of fundamental rights by passing an initiative.
Which means, essentially, that he voted to uphold the challenge to Prop 8, not because the arguments had merit, but because he doesn’t like the proposition. That’s a legitimate political position, but if the petitioners had thought that a legitimate legal argument, they would have made it. Sounds like Justice Moreno needs to resign from the court and run for the state legislature.
At the same time that they upheld Prop 8, the justices also allowed the 18,000 gay marriages contracted before the referendum was passed to stand. That was the only fair thing to do. The justices had committed a horrendous blunder last June when they ordered the state to register same-sex marriages at the same time they let Prop 8 go to the voters. It was a blatant move to change the facts on the ground judicially to try to force the political result the court wanted. It was a misuse of judicial power for them to do so, but that doesn’t mean the 18,000 couples who acted in accordance with the law as the court re-wrote it should be forced to pay the price. The justices who voted to let those marriages proceed should do so, instead, in the form of recall elections for every one who voted to abuse their power. But at least they got it right today.
UPDATE: With absolute predictability, Americans United for Separation of Church and State weighed in with disapproval of the California Supreme Court’s refusal to buy a bogus argument and legislate on behalf of its preferred policy position. But you’ve got to love how the Rev. Barry Lynn manages to insult and dismiss the majority of Californians who don’t happen to agree with him:
“Today’s ruling is unfortunate, but it’s not the end of the fight,” Lynn said. “I’m confident that Californians will rise up and reject the divisive agenda of the Religious Right.”
Which now apparently consists of just over 52% of all California voters, including large majorities of its Hispanic and African-American communities.