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The Recent California Marriage Ruling: Good Ruling or Judicial Activism? Article Summary and the Author’s Intent: This article deals with the recent California Supreme Court ruling, which struck down the California ban on same sex marriage. The author intends to show that the ruling of the California Supreme Court was in error based on the merits of its constitutionality. He will further attempt to address the proper role of Chief Justice Ronald M. George and show that he engaged in judicial activism, overstepping the proper bounds of his office. The author does not venture to discuss the validity or morality of same sex marriage in this article. Summary of the Court’s Opinion and Ruling: A recent California Supreme Court ruling has lifted the state wide ban on same sex marriage. In a 4-3 vote the Court overruled the will of the people who passed Proposition 22 in 2000 by a vote of 61.4 percent. Proposition 22 stated, “Only marriage between a man and a woman is valid or recognized in California.” The ruling of the court holds in part, “[w]e determine that the language of section 300 limiting the designation of marriage to a union ‘between a man and a woman’ is unconstitutional and must be stricken from the statute,” and furthermore “the limitation of marriage to opposite-sex couples imposed by section 308.5” is unconstitutional as well. The “right of two adults who share a loving relationship to join together to establish an officially recognized family of their own �' and, if the couple chooses, to raise children within that family �'constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.” The “right” referenced by the Court is supposedly found in Article I, Sections 1, 2, and 7 of the California State Constitution. The Sections referenced state in pertinent part: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Cal. Const., art. I, § 1. “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” Cal. Const., art. I, § 2(a). “A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws . . . .” Cal. Const., art. I, § 7(a). These sections of the California Constitution in no way reference any “right” to same sex marriage. In fact, California’s first sodomy law was passed the same year that her state constitution was established. The statue held that “The infamous crime against nature, either with man or beast, shall subject the offender to be punished by imprisonment in the State Prison for a term not less than five years, and which may extend to life.” Statutes 1850, ch. 99, § 48, p. 99. It is implausible that the authors of California’s Constitution would have approved of same sex marriage. Yet, that same constitution has been used by California’s Supreme Court to establish that outlawing same sex marriage violates the California Constitution. Chief Justice Ronald M. George Engaged in Judicial Activism: According to a Los Angeles Times article, Chief Justice Ronald M. George “assigned the majority opinion to himself. He wrote and rewrote, poring over draft after draft.” Chief Justice George was the driving force behind the Court’s decision. He personally wrote the courts majority opinion, crafting each line of logic. It was Chief Justice George who determined that it was his place to override the California peoples’ will and abolish the law prohibiting same sex marriage. Even though the Chief Justice argues that such a prohibition is a violation of California’s Constitution, he still recognizes that neither the original intent of the Constitution nor the law was ever intended to support same sex marriage. Chief Justice George states in the Court’s ruling that “[F]rom the beginning of California statehood, the legal institution of civil marriage has been understood to refer to a relationship between a man and a woman…and the marriage statute adopted by the California Legislature during its first session clearly assumed that the marriage relationship necessarily involved persons of the opposite sex.” Chief Justice George, by his own admission, disregarded the rule of law and chose to enact his opinion over the will of the people. Frankly, Chief Justice George’s complete disregard for the democratic process is appalling. Justice Marvin Baxter, writing in the dissenting opinion of the marriage ruling, says it best: 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 [sic] 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. Justice Baxter continues: “[t]he [court] majority…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.” Judge Robert Bork in his book Coercing Virtue states, “[a]ctivist Judges are those who decide cases in ways that have no plausible connection to the law they purport to be applying, or who stretch or even contradict the meaning of that law. They arrive at results by announcing principles that were never contemplated by those who wrote and voted for the law.” It is reasonable to argue that Chief Justice Ronald M. George has forsaken his proper role as an interpreter of the law, and turned instead to legislating from the bench. If the Chief Justice wishes to make law instead of interpreting it, he should quit masquerading as a judge. It is obvious that he believes same sex marriage should be the social policy of California. He is entitled to that opinion, but as a judge he does not have the freedom to overturn the express will of the people and create a constitutional right where none exists. Chief Justice George should hang up his robe, win the popular vote of the people, and enact his policy from a seat of legislative power. Endnotes: i See the Court’s 172 page ruling in its entirety http://www.courtinfo.ca.gov/opinions/documents/S147999.PDF. ii for Proposition 22 voting results see http://primary2000.sos.ca.gov/returns/prop/00.htm. iii for LA Times article see http://www.latimes.com/news/local/la-me-gay18-2008may18,0,4272300.story?page=1. iv Bork, Robert. Coercing Virtue: The World Wide Rule of Judges. Page 8, Washington, D.C.: The AEI Press, 2003.

The Recent California Marriage Ruling: Good Ruling or Judicial Activism?

Article Summary and the Author’s Intent:

This article deals with the recent California Supreme Court ruling, which struck down the California ban on same sex marriage. The author intends to show that the ruling of the California Supreme Court was in error based on the merits of its constitutionality. He will further attempt to address the proper role of Chief Justice Ronald M. George and show that he engaged in judicial activism, overstepping the proper bounds of his office. The author does not venture to discuss the validity or morality of same sex marriage in this article.

Summary of the Court’s Opinion and Ruling:

A recent California Supreme Court ruling has lifted the state wide ban on same sex marriage. In a 4-3 vote the Court overruled the will of the people who passed Proposition 22 in 2000 by a vote of 61.4 percent. Proposition 22 stated, “Only marriage between a man and a woman is valid or recognized in California.” The ruling of the court holds in part, “[w]e determine that the language of section 300 limiting the designation of marriage to a union ‘between a man and a woman’ is unconstitutional and must be stricken from the statute,” and furthermore “the limitation of marriage to opposite-sex couples imposed by section 308.5” is unconstitutional as well. The “right of two adults who share a loving relationship to join together to establish an officially recognized family of their own �' and, if the couple chooses, to raise children within that family �'constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.”

The “right” referenced by the Court is supposedly found in Article I, Sections 1, 2, and 7 of the California State Constitution. The Sections referenced state in pertinent part: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Cal. Const., art. I, § 1. “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” Cal. Const., art. I, § 2(a). “A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws . . . .” Cal. Const., art. I, § 7(a). These sections of the California Constitution in no way reference any “right” to same sex marriage. In fact, California’s first sodomy law was passed the same year that her state constitution was established. The statue held that “The infamous crime against nature, either with man or beast, shall subject the offender to be punished by imprisonment in the State Prison for a term not less than five years, and which may extend to life.” Statutes 1850, ch. 99, § 48, p. 99. It is implausible that the authors of California’s Constitution would have approved of same sex marriage. Yet, that same constitution has been used by California’s Supreme Court to establish that outlawing same sex marriage violates the California Constitution.

Chief Justice Ronald M. George Engaged in Judicial Activism:

According to a Los Angeles Times article, Chief Justice Ronald M. George “assigned the majority opinion to himself. He wrote and rewrote, poring over draft after draft.” Chief Justice George was the driving force behind the Court’s decision. He personally wrote the courts majority opinion, crafting each line of logic. It was Chief Justice George who determined that it was his place to override the California peoples’ will and abolish the law prohibiting same sex marriage. Even though the Chief Justice argues that such a prohibition is a violation of California’s Constitution, he still recognizes that neither the original intent of the Constitution nor the law was ever intended to support same sex marriage. Chief Justice George states in the Court’s ruling that “[F]rom the beginning of California statehood, the legal institution of civil marriage has been understood to refer to a relationship between a man and a woman…and the marriage statute adopted by the California Legislature during its first session clearly assumed that the marriage relationship necessarily involved persons of the opposite sex.” Chief Justice George, by his own admission, disregarded the rule of law and chose to enact his opinion over the will of the people.

Frankly, Chief Justice George’s complete disregard for the democratic process is appalling. Justice Marvin Baxter, writing in the dissenting opinion of the marriage ruling, says it best:

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 [sic] 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.

Justice Baxter continues: “[t]he [court] majority…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.”

Judge Robert Bork in his book Coercing Virtue states, “[a]ctivist Judges are those who decide cases in ways that have no plausible connection to the law they purport to be applying, or who stretch or even contradict the meaning of that law. They arrive at results by announcing principles that were never contemplated by those who wrote and voted for the law.” It is reasonable to argue that Chief Justice Ronald M. George has forsaken his proper role as an interpreter of the law, and turned instead to legislating from the bench. If the Chief Justice wishes to make law instead of interpreting it, he should quit masquerading as a judge. It is obvious that he believes same sex marriage should be the social policy of California. He is entitled to that opinion, but as a judge he does not have the freedom to overturn the express will of the people and create a constitutional right where none exists. Chief Justice George should hang up his robe, win the popular vote of the people, and enact his policy from a seat of legislative power.

Endnotes: i See the Court’s 172 page ruling in its entirety http://www.courtinfo.ca.gov/opinions/documents/S147999.PDF.

ii for Proposition 22 voting results see http://primary2000.sos.ca.gov/returns/prop/00.htm.

iii for LA Times article see http://www.latimes.com/news/local/la-me-gay18-2008may18,0,4272300.story?page=1.

iv Bork, Robert. Coercing Virtue: The World Wide Rule of Judges. Page 8, Washington, D.C.: The AEI Press, 2003.