Or, as the dissenting Judge Baxter put it...

Commenting on my post about the court ruling in California re: "same sex marriage," (May 15, 2008; #S147999), a reader kindly linked to the court documents, which can be accessed as a PDF document and as a Word document. This is some of what Judge Baxter wrote in dissenting from the majority opinion:

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conclusion that the age-old understanding of marriage — an understanding recently confirmed by an initiative law — is no longer valid.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.

The majority’s mode of analysis is particularly 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.  I cannot subscribe to the majority’s reasoning, or to its result. ...

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.
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.

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,  the 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.

Judicial fiat. Judicial oligarchy. Power play. It is all of that and more. With more to come, I think it is reasonable to guess.

Comments

[Augustine II]

Yesterday was another sad, sad day in American history. Of course it logically flows from the supreme judicial fiat exercised in Griswold v. Connecticut (1964, contraception), Roe v. Wade (1973, abortion), and Lawrence v. Texas (2003, sodomy), among others.

Predictably, my local paper, the L.A. Times, is intoxicated with this beastly decision.

[Robert Miller]

Just over 40 years ago, the late constitutional lawyer and editor of Triumph magazine, L. Brent Bozell, Jr., published "The Warren Revolution". Bozell's argument, as I take the liberty here to distill it, is that the Constitutional scheme contemplates that each of the federal branches and each of the states will interpret the Constitution and laws as it applies to each in carrying out its assigned duties. Thus, the real principle of "checks and balances" is given effect only in tension, not in deference and acquiescence, among the several branches of government.

The principle is perhaps best summarized in Andrew Jackson's succinct: "The Court has made its decision; now let it enforce it."

This presents a "Constitutional" "way out" for those Catholics and other pro-life Christians in public life who feel stymied by the anti-life, anti-family weight of US judicial precedent. Let prosecutors begin indicting abortionists for murder and closing abortion mills as common nuisances, let legislators begin passing laws prohibiting abortion, let judges refrain from enforcing higher court decisions that interpret US Constitution and laws in a manner contrary to natural law, let county clerks and registrars refuse to issue "marriage" licenses to GLBTs... . The opportunities for productive checking and balancing are almost endless -- and we could finally crack the two centuries-old enthrallment of our fellow Americans with the regime of "judicial supremacy".

[Dan]

Augustine II is right that this decision almost inevitably flows from Griswold and Lawrence but I was nevertheless rudely surprised by the decision. There had been a trend in the courts to reject judicially imposed "gay marriage" and press reports concerning oral argument in this case indicated that the California Supreme Court was skeptical of the claims for "gay marriage."

I live in California and I intend to do everything within my limited power to promote passage of the ballot initiative that would presumably overturn this decision by codifying true marriage in the California Constitution. I find this decision deeply unsettling and it makes me angry even though it is not really unprecedented given Griswold and Lawrence.

[Roger Dodger]

Yes, because the sanctity of marriage must be protected for hetetosexuals who take it seriously...like Britney Spears.

[Paul]

Dodger,

I think you meant "heterosexuals" and "who don't take it seriously." Just trying to help you type there.

[Dan]

Brittany Spears proves that a child does not need both a mother and a father? How is that?

We already know what the consequences are when society does not seek to limit the marital act (i.e., sexual intercourse) to marriage and instead promotes non-marital sex: huge numbers of fatherless children, rampant sexually transmitted disease, skyrocketing divorce rates, and massive numbers of abortions. It is not a pretty picture. And there is mounting evidence that the explosion in the rate of depression since the 1960s is associated with our society's sexual binging. "Gay marriage" serves to exacerbate all these trends. It does so by by proscribing laws premised on a reality-based understanding of what sex is and why it needs to be confined to marriage: the understanding that children are a natural consequence of sex, that a child is best off with his mother and father and that, therefore, society should support and privilege marriage so as to enhance the chances that children are brought into the world under circumstances that are optimal for them. It is true that many heterosexuals have themselves abandoned this view and that some of them, like Brittany Spears, also have contributed to the ugly mess that is associated with sex outside of marriage. This however is an argument against, not for, gay marriage. To put our house in order, we must first relearn that sex produces children, that children need both their father and mother (even if she is Brittany Spears), and that, therefore, sex should be limited to marriage. "Gay marriage" negates these lessons.

Incidentally, does anyone know what the "marital act" is in a "gay marriage"? And whatever it is, why would it ever need institutional support?

[Soledad]

Justice Corrigan's dissent is also significant. She makes it clear that although she personally favors gay "marriage", in conscience she could not go along with the twisted legal reasoning of the majority. Like Dan, I experienced the decision as "deeply unsettling". It not only does violence to God's law, the institution of marriage/ family, and the expressed will of the People, but it does violence to the law and the legal profession. Although I do not in the least agree with Justice Corrigan's personal beliefs re gay "marriage", I tremendously admire her intellectual integrity as displayed by her refusal to do violence to the law in this case.

[Augustine II]

I emailed the following to some Catholic friends:

Catholics are increasingly likely to be asked: What's wrong with homosexual "marriage"? Serious Catholics must know the answer to this question. They must know it cold. And they must be willing to be branded as "homophobes," "fundamentalists," "bigots," "intolerant," and all the rest of it, remembering these words of Christ:

"If the world hates you, know that it has hated me before it hated you. If you were of the world, the world would love its own; but because you are not of the world, but I chose you out of the world,
therefore the world hates you." (John 15:18-19)

This isn't to say that they should spend a lot of time arguing with those who aren't open to truth (though these latter may advertise themselves as exquisitely open-minded and tolerant), since they're also to remember these words of Christ:

"Do not give dogs what is holy; and do not throw your pearls before swine, lest they trample them under foot and turn to attack you." (Matthew 7:6)

If asked, they should simply state the case against homosexual "marriage" and leave the rest to the grace of God. But then they'll probably be confronted with Matthew 7:1: "Judge not...." Their interlocutor will most likely judge this as a devastating rejoinder,
conveniently forgetting that Matthew 7:1-5 is about hypocritical judgment, not judgment per se. He'll also most likely be ignorant of 1 Corinthians 2:15 and John 7:24. These things should be pointed out to him, along with the fact that Christ - as the Logos - couldn't
possibly be unaware that life is impossible and indeed undesirable without constant moral judgments (e.g., parents must judge a pedophile as morally unfit to babysit their children).

Serious Catholics must arm themselves (cf. Ephesians 6:10-18). Otherwise this crumbling, depraved culture will likely seduce them too - as it has the "cafeteria Catholics," for example. (Some actually proudly declare themselves to be "cafeteria Catholics." Incredible!
Yet this buffet approach is only common Oprahism, not Christianity, and consequently not worth a drop of spilled blood. Who would die for it? They've conformed themselves to the world. "But why not conform
ourselves to the world?" they might ask. See, e.g., 1 John. 2:15; 1 John. 4:5; James 4:4; Romans 12:2; John 12:25; Colossians 3:2; 2 Peter 1:4. Find them here: http://bible.crosswalk.com/ and use the Revised
Standard Version or the Douay-Rheims.)

Anyway, study this:

http://www.catholic.com/library/gay_marriage.asp

Also see:

"The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize."

-Justice Antonin Scalia, Wabaunsee County v. Umbehr, 518 U.S. 668 (1996) (dissenting)

"To the extent that man seeks in new ways to build for himself the world as a whole, thereby ever more perceptibly endangering its foundations, he also loses his vision of the order of creation with
regard to his own life. He considers he can define himself as he pleases by virtue of an inane freedom."

-Benedict XVI, Address to the Second Group of German Bishops on their "Ad Limina" Visit, 11-18-06

"Political correctness seeks to establish the domain of a single way of thinking and speaking. Its relativism creates the illusion that it has reached greater heights than the loftiest philosophical achievements of the past. It prescribes itself as the only way to
think and speak - if, that is, one wishes to stay in fashion. Being faithful to traditional values and the knowledge that upholds them is labeled intolerance, and relativism becomes the required norm. I think
it is vital that we oppose this imposition of a new pseudo-enlightenment, which threatens freedom of thought as well as freedom of religion. In Sweden, a preacher who had presented the Biblical teachings on the question of homosexuality received a prison sentence. This is just one sign of the gains that have been made by relativism as a kind of new 'denomination' that places restrictions on religious convictions and
seeks to subordinate all religions to the super-dogma of relativism."

-Joseph Ratzinger (now Benedict XVI), Without Roots: The West, Relativism, Christianity, Islam, p. 128.

"It is our task to make people understand that the moral law given to us by Him and manifested to us by the voice of our conscience does not aim to oppress us but rather to set us free from evil and make us
happy."

-Benedict XVI, Lecture to 59th Study Conference of the Union of Italian Catholic Jurists, 12-09-06

"Instead of making it possible to breathe humanly again, we defend with a totally false conception of freedom everything that man's arbitrary desire produces. As long as we retain this caricature of freedom, namely, of the freedom of inner spiritual self-destruction, its outward effects will continue unchanged."

-Joseph Ratzinger (now Benedict XVI), Salt of the Earth

"Wherever God is not, hell comes into existence....That may also come about in subtle forms and almost always does so under cover of the idea of something beneficial for people."

-Joseph Ratzinger (now Benedict XVI), "Church on the Threshold of the Third Millennium," Pilgrim Fellowship of Faith, p. 285

"The loss of transcendence evokes the flight to utopia. I am convinced that the destruction of transcendence is the actual amputation of human beings from which all other sicknesses flow. Robbed of their real greatness they can only find escape in illusory hopes."

-Joseph Ratzinger (now Benedict XVI), Christianity and the Crisis of Cultures

"Today, having a clear faith based on the Creed of the Church is often labeled as fundamentalism. Whereas relativism, that is, letting oneself be 'tossed here and there, carried about by every wind of doctrine,' (Eph. 4:14) seems the only attitude that can cope with
modern times. We are building a dictatorship of relativism that does not recognize anything as definitive and whose ultimate goal consists solely of one's own ego and desires."

-Joseph Ratzinger (now Benedict XVI), Mass Pro Eligendo Romano Pontifice, Vatican Basilica, 4-18-05

[Matthew]

To my mind the real problem here is not 'gay marriage' but the state of heterosexual marriage. About ten years ago in a column in Our Sunday Visitor Julie Loesch Wiley argued that we have had 'gay marriage' in this country for nearly 30 years why wouldn't homosexuals want in on that? She defined 'gay marriage' as temporary unions that are intentionally non-procreative and which are essentially rooted in fulfilling one's own personal needs. This is the definition of marriage that our culture uses.
I oppose legally approving the union of two men or two women but unless we make clear that our definition of marriage is radically different that society's definition we are fighting a losing battle.

[Augustine II]

Matthew, there's a problem with both marriage and homosexual "marriage."

Wiley would have done better to call them barren narcissistic marriages rather than "gay marriages."

The Church has made its teaching on marriage clear. See, e.g., the Catechism.

Incidentally, I talked to my grandmother, born in 1929, about this. When asked if she ever thought she'd see the day when it would be said that homosexuals could marry, she said, "Never. We never even heard of 'em." Now, a mere blink of an eye later in the scope of time, homosexuals have the legal right to marry in the country's largest state, they've captured the mainstream media, they've got a large segment of the population on their side, and they've infiltrated the Church. Reminds me of this from Hilaire Belloc's The Great Heresies, published in 1938:

"The Modern Attack is so universal and moving so rapidly that men now very young will surely live to see something like a decision in this great battle."

[Sleeping Beastly]

Carl, I may owe you an apology. It seems that the court may have overstepped its bounds after all. Section 300 of the California Family Code specifically defines marriage as "a civil contract between a man and a woman".

If my understanding of the Supreme Court's powers is correct, they are authorized to overturn legislation found to be unconstitutional, but not to rewrite that legislation in a more constitutional fashion. Thus, it seems to me that they would be within their rights in striking Division 3 from the California Family Code, but are not within their rights in rewriting Section 300 to include a legal definition which was not originally intended.

Actually, I wonder whether this wouldn't be best for all concerned. Perhaps we could compromise on eliminating altogether state recognition of marriage, and simply allow states to write their own civil union laws. I would see this as less of a step backwards than redefining the word "marriage", and gay activists would get the "equal treatment" they feel they deserve.

[Questioner]

Praytell, what is the difference between same-sex marriage and interracial marriage? Some say that interracial marriages are also unnatural--how can I know that those people are wrong? What about segregation? Didn't "activist judges" strike that down against the will of the people? Are segregation and apartheid laws of nature? How can I know that they're not? Thank you for allowing me the chance to ask questions.

[jhn]

Courts don't actually remove statutes from books I'd rewrite them. They simply issue opinions which trump statutes legally. Sometimes the effect of a court opinion leaves a statute in place, but limits the scope of its interpretation.

I think this decision flows inevitably from the application of strict scrutiny. For a discriminatory law or one that violates a constitutional right to be upheld, there needs to be a compelling state purpose. A constitutional amendment is absolutely the appropriate and probably only means by which to protect traditional values in a liberal democracy. In short, I think the decision was correct as a strictly legal matter.

[Sleeping Beastly]

Praytell, what is the difference between same-sex marriage and interracial marriage? Some say that interracial marriages are also unnatural--how can I know that those people are wrong? What about segregation? Didn't "activist judges" strike that down against the will of the people? Are segregation and apartheid laws of nature? How can I know that they're not? Thank you for allowing me the chance to ask questions.

Good questions, and questions that really need to be asked in our society. Basically, I think we need to get back to the question of why societies institutionalize marriage in the first place. If we look at history, we have no examples of widespread homosexual marriage in any society. We can find isolated incidents of it, but even in these cases, those involved seem to understand that what they are doing is outside the norm.

This is true even of societies that embraced homosexuality, such as ancient Greece and Rome. No one can argue that they failed to implement same-sex marriage out of some kind of anti-gay discrimination.

No, the reason they institutionalized marriage is that marital bonds and privileges (the law generally applies some of both) help to strengthen the basic family units of society that raise the next generation of citizens.

I think that given the fact that our culture is beginning to shed traditional notions of family entirely, institutionalized marriage may no longer be relevant in modern America. Unless we, as a society, are ready to enforce things like marital fidelity and indissolubility (and I really don't think we are) I don't think we can claim that marriage has the same purpose it has for most historical civilizations, and thus probably has no place as a legal institution.

[Mark Brumley]

Praytell, what is the difference between same-sex marriage and interracial marriage? Some say that interracial marriages are also unnatural--how can I know that those people are wrong? What about segregation? Didn't "activist judges" strike that down against the will of the people? Are segregation and apartheid laws of nature? How can I know that they're not? Thank you for allowing me the chance to ask questions.

Why should one think they are the same thing? Just because some people used to oppose interracial marriage and some people oppose same sex marriage today, why should we think they're similar or the same thing in the morally relevant sense?

Shal we ask, what is the difference between interracial marriage and polygamy? People once opposed interracial marriage and many people still oppose polygamy. So should we suppose they're the same thing?

Should we assume simply because Practice X, which was once illegal and widely regarded as wrong, is now generally regarded as morally acceptable, that Practice Y, which is regarded by some as wrong, should now be legalized and regarded as morally acceptable?

[Joe G.]

The ban against certain interracial marriages (VA did not ban all interracial marriages, but those between whites and "coloreds") that was overturned in Loving v. Virginia was an obvious violation of the 14th Amendment.

There's no such clear constitutional violation in the same-sex marriage realm as there was in Loving.

And to further differentiate the interracial = same-sex argument, there are valid, rational reasons for limiting marriages between types of individuals.

Potential partners are limited in numerous ways, including: you cannot marry someone of close relation; you cannot marry someone who has not consented; you cannot marry someone who is already marry, etc.

Our marriage laws don't even ask about the orientation or sexual behavior of those who apply, but rather, our laws (in places other than, for instance, Massachusetts and now, California) stipulate a quantity (two persons) and quality (one man, one woman) to marriage.

And if the "quality" of marriage can be changed via judicial fiat, I fail to see how the quantitative component can stand.