Do I see a “to hell with democracy” moment in California’s future? *UPDATED*

A few months ago, the California Supreme Court overruled the will of the California voters and announced that gay marriage was a fundamental right.  The voters responded by changing the California Constitution to state that, in California, marriage is between one man and one woman.  As you know, if it were up to me, I’d get the state out of the “marriage” business altogether, leaving it to religions, and limiting the state to civil unions.  Second best to that, though, is that marriage remain what it has been in Western culture for thousands of years:  a male/female thing.

What do you bet, though, that the California Supreme Court, smarting from the rebuff that the voters issued, will once again sweep aside the people’s will and announce that gay marriage is so fundamental a right that it cannot even be addressed through constitutional amendment:

California’s highest court has agreed to hear legal challenges to a new ban on gay marriage, but is refusing to allow gay couples to resume marrying until it rules.The California Supreme Court on Wednesday accepted three lawsuits seeking to overturn Proposition 8. The amendment passed this month with 52 percent of the vote. The court did not elaborate on its decision.

All three cases claim the ban abridges the civil rights of a vulnerable minority group. They argue that voters alone did not have the authority to enact such a significant constitutional change.

UPDATE: At Power Line, there’s a feeling that the anti-Prop. 8 party’s briefs are so awful that they don’t give the California Supreme Court a legal leg to stand on when it comes to declaring unconstitutional the California constitution.

Be Sociable, Share!
  • Charles Martel

    A century ago, who could have predicted that 21st century jurists would be able to discover new rights simply by reaching into the emanation and penumbra tract at the end of their lower intestines and pulling them out?

  • 11B40


    An idea occurred to me recently concerning homosexual marriage that I would like to run up your metaphorical flagpole.

    I see heterosexual marriage as a governmentally licensed contract between one man and one woman. Now, my understanding is that a contract usually requires a “meeting of the minds” between the parties. If the California Supreme Court redefines the marriage contract to include homosexual marriages, does that retroactively effect all the previous marriage contracts? In other words, can a married heterosexual void his or her contract based on the expanded definition of what is allowed in a marriage?

  • Charles Martel


    What would probably happen is that the Supremes would declare that the “right” to homosexual marriage, although it had been implicit all these years in a 19th-century document, did not really exist until it had emerged from their emanators in early 2008.

    So, all hetero marriages prior to then would have been subject to the limited definition of marriage as it then existed.

    Hetero marriages contracted after the Supremes’ Light from Darkness moment would have been undertaken with the knowledge that there is now no room for deception and that people are free to marry whatever set of genitals appeals to them most — therefore, no harm or foul.

  • Mike Devx

    I remain clear on one thing: If the liberal activists win this gay marriage battle, they will simply move on to the next battle on their list. This is NOT about gay marriage; rather it is about just another item on their long list.

    There might be a small minority of gays wanting marriage solely so that they can strengthen their monogamous relationship. But I believe for the vast majority of them, this is just another step on the long agenda road.

    As to judicial tyranny… the ends never justify the means.

    Which brings me to a related but different question. The only famous cases I can think of where the courts ruled WELL on “civil rights” cases (eventually) were for women gaining the right to vote, and black civil rights.

    In those two cases, wasn’t there widespread popular support across MOST of the country? And isn’t that a critical difference between those two areas, and this recent gay marriage court-induced brouhaha: Because there isn’t a single state in the entire country, I believe, where the VOTERS have voted for gay marriage?

  • Zhombre

    Of course, democracy is what an exigent minority, activist lawyers and unaccountable judges allow us, that and nothing more. It is a tried and true tactic of the left to short circuit popular opinion and win battles in the courts. But as some on the left have noted, this leaves the losing side unconvinced and unreconciled, a disenfranchised majority. The backlash from that will cause gale force winds.

  • expat


    I’m with you. I see the gay marriage group as just another bunch of organized narcissists who will never take no for an answer. They aren’t interested in reasonable compromises that have respect for the shared cultural and moral underpinnings of our society. They don’t care about the effects of their wants on children. I have the same reaction to FOCA. I can accept the fact that some people disagree about abortion itself, but I cannot accept that people think it’s great if a 14 or 15 year old has an abortion without the parents’ knowledge. I can’t accept the it’s-no-big-deal attitude. The radical activists in the US need to have a great big let’s-count-our-blessings day instead of acting like spoiled brats.

  • BrianE

    When the Supreme Court found a limited right to abortion in the first trimester did they imagine that privacy right would lead to a logical conclusion that abortion is a private matter up to and including birth?
    Why should anyone assume that a new found right to marriage by same sex couples not lead to a right for brothers or sisters or father and daughter or three persons or a gaggle of persons to marry. If two is the operative word, then familial relationships shouldn’t matter and given the logical conclusion that the right is individual in nature, then there should be no prohibition to three or more.
    If the fundamental argument is that two people have a right to be happy, don’t three people have a right to be happy?

    I wonder sometimes if proponents of SSM hope their children grow up to be homosexual like they hope they’ll be doctors or lawyers. Maybe they just hope they’ll be happy, regardless of sexual orientation, but I can’t help thinking the first choice would be for a heterosexual relationship.
    I think society tolerates homosexuality, but would never wish it for anyone. Which makes it all the more imperative that homosexuality is taught at an early age to be not only acceptable, but desirable, given that in its own right, there is not much to recommend it.
    Gay’s have a shorter life expectancy, are more likely to be unfaithful in their relationships and are more likely to suffer emotional problems.
    This is the frustration of the gay community, since they certainly don’t think people can be talked into homosexuality, being that it is genetic in nature so it will always be an oddity of nature. Unless, of course, people can be talked into the lifestyle once its benefits can be promoted.

    This pretty much sums up my feelings on gay marriage:

    We are reluctant to say this today because our culture has been inundated with gay-rights propaganda that carefully avoids the sexual reality of homosexual behavior. Instead the emphasis is on the so-called emotional and romantic aspects. As a result, we feel sympathetic; we may feel like we should capitulate to their demand for marriage in the name of equal treatment. However, equal treatment of persons living the homosexual lifestyle is a completely different issue than redefining marriage. No thinking Christian opposes the equal treatment of homosexuals, because they are fully human persons made in the image of God. Furthermore, gay men and women are free to have sex, experience romantic relationships, and live in whatever arrangement they choose. (Of course, there are consequences to these choices.) What is not their choice is to redefine an institution essential to the social welfare and common good such that these benefits are nullified. The demand for SSM is not about equal dignity and treatment but rather social affirmation of a particular lifestyle.

    – S. Michael Craven

  • BrianE

    Is this the going to be the exception or the rule:

    Judge rebukes school for ‘one-way diversity’
    Christian students won a major First Amendment victory in Michigan, after a federal judge chastised school officials for their one-sided support for the “gay” agenda.

    Federal Judge Gerald Rosen ruled that Pioneer High School violated the constitutional rights of student Betsy Hansen by censoring her Christian views concerning homosexuality. Last year, during a so-called “Diversity Week” forum at the Ann Arbor school, officials permitted only pro-homosexual viewpoints to be expressed.

    Hansen, a Roman Catholic, had been asked to give a speech on the topic, “What Diversity Means to Me,” and to present it during a “Homosexuality and Religion” panel discussion. But the school censored her speech, claiming her religious views toward the topic were negative and would “water-down” the positive message the school wanted to convey.

    Ironically, the school did allow an approved religious viewpoint to be presented to students when it permitted six handpicked religious leaders to sit on the panel and quote Scripture – which they claimed was in favor of homosexuality.

    In his 70-page opinion, Judge Rosen stated the case “presents the ironic, and unfortunate, paradox of a public high school celebrating ‘diversity’ by refusing to permit the presentation to students of an ‘unwelcome’ viewpoint on the topic of homosexuality and religion, while actively promoting the competing view.” He said the practice of such “one-way diversity” is both unsettling and troubling, and that the exclusion of one viewpoint in favor of another “hardly seems to further the school’s purported objective of ‘celebrating diversity.’”

    Source: AgapePress, 12/9/03

  • socratease

    Two words of advice to CA’s SC justices:

    Rose. Bird.

  • Charles Martel


    Good. call.

  • Tiresias

    Interesting argument: “voters alone did not have the authority to enact such a significant constitutional change.”

    On Mars, maybe, but not in the United States. Who do they think does have such authority?

    I would think that an argument so clearly absurd and stated so bluntly would (first of all) have a difficult time finding a lawyer to even make it! Don’t lawyers have some responsibility to the constitutionally defined process? (You know, that old stuff: consent of the governed, power vested in the people, legislative not judicial branch makes laws – stuff like that. Outmoded stuff, I guess California would call it.)

    I would also think that such an argument made so bluntly and devoid of any pretense of protective cover would find it difficult to be swallowed by even a California judge.

    I bet I’m wrong, though.

  • geoffreybritain

    Efforts to secure same-sex marriage are NOT about equal rights. Though ‘equal rights IS the bludgeon being used to attain the GLBT goal: SOCIAL ACCEPTANCE

    It will be some time before ministers and churches are sued for refusing to ‘marry’ gay and lesbian couples. But that day MUST eventually come because the goal of full social acceptance REQUIRES it.

    The problem with using activist judges to impose same-sex marriage upon unwilling state populations is simple but subtle. Once judges rule that refusal to allow SSM is unconstitutional due to the equal protection clause…it LEGALLY forces open the door to ANY other desired form of ‘marriage’.

    Polygamy, polyandry, ‘plural’ marriages of any desired configuration…incestuous marriages between consenting adults…

    As ‘far-fetched’ as this may seem from a common sense perspective, LEGALLY there would remain no logical basis for CONSTITUTIONALLY excluding these definitions of ‘marriages’.

    Who may or may not marry would become ENTIRELY ARBITRARY and thus over time, LEGALLY INDEFENSIBLE.

    BECAUSE logically, it WOULD then be DISCRIMINATORY to limit marriage to TWO people, based upon the activist ruling that the equal protection clause makes it unconstitutional to bar SSM.

    It will ALSO make it constitutionally MANDATORY that children be taught in public schools that transsexualism, gay lifestyles, plural marriage, etc. are simply another normal sexual inclination because to do otherwise would be to ‘support’ discrimination in schools.

    The ‘law’ of unintended consequence is fully in effect on this one and the social implications for the very foundations of society are monumental.

    The next few generations are about to get a profound lesson in the unintended costs of generational hubris.

  • socratease

    “voters alone did not have the authority to enact such a significant constitutional change.” What is so unusually “significant” about keeping things the way they have been since before the dawning of western civilization?

  • suek

    This is where it’s headed…making it possible to force acceptance of homosexuality or pay the legal cost. Churches next. Stop preaching that homosexuality is sin or be slapped with charges of hate crime, and lose your tax free status.