Gay marriage legal in CA; what will CT do?
Yesterday, California’s Supreme Court issued an historic 4-3 ruling [pdf] overturning that State’s statutory ban on gay marriages. Glenn Greenwald at Salon has a terrific analysis of the ruling here. It is critical to note that this argument was made pursuant to the California Constitution, not the U.S. Constitution.
As noted in a footnote in that decision, the Connecticut Supreme Court is considering an identical issue in Kerrigan v. Comm’r of Public Health. That case was argued before the Justices one year and two days ago. Re-reading my posts on the oral argument, it seems to me that the most likely outcome is that the Court will punt the case back to the legislature. The days of the CT Supreme Court being on the forefront of progressive jurisprudence seem to be long gone.
While the year and two day delay seems lengthy (compare that to CA, where they issued their opinion in two months), it is not the longest delay I’ve seen from the Court. Further, with May being the last term of the Court, it is very likely that if we do not get a decision from them by the end of July, we won’t see one till September or October.
Anyway, this decision by the CA Court is truly a landmark decision, making California only one of two States in the country to recognize same-sex marriages (MA being the other). It is a good day for equality when a Court sees the “civil union” argument as nothing but more of the “separate but equal” travesty.
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about 2 years ago
So a man in a robe has the power to tell the 4,618,673 California voters (a supermajority of over 60%) who passed Proposition 22 that their votes don’t count.
When Robert Mugabe nullifies an election in Zimbabwe, we cry out in pious indignation. But when it happens here, our tyrants are toasted as enlightened liberators. If the people didn’t want this to happen, they shouldn’t have voted “wrong”.
In a sane world, judges such as these would be immediately removed from office for gross incompetence and corruption. Their abuse of power would be regarded as disgraceful; the stuff of dictatorships. Instead, creeping tyranny is celebrated as a normal part of the political process. The voters don’t run the show; the voters are merely an obstacle.
about 2 years ago
What’s the difference between a voter proposition and legislation passed by legislature? Why can Judges rule on the Constitutionality of one and not the other?
What if the voter proposition was to return to segregation era policies? Does the judiciary not have the authority to state that such a “proposition” violates the State Constitution?
There’s also no real comparison between Mugabe and the CA Supreme Court.
about 2 years ago
California has both regular ballot initiatives (which have the weight of law) and Constitutional ballot initiatives (which directly amend the state Constitution, and cannot be overruled by the courts.) The eight-years-ago proposition was the former, and Christian Right activists are promoting a Constitutional proposition this year.
FWIW, the legislature has passed marriage equality multiple times, and Governor Schwarzenegger vetoed it, saying that the courts should decide — and that he would stand behind whatever they did decide.
about 2 years ago
No. The California Supreme Court is not like Mugabe, but Anton’s point is correct, this is a court illegitimately withdrawing the people’s right to govern themselves. They deserve nothing but scorn and calumny for it. They are truly evil, as I do not believe this was done in good faith. When I was a law clerk, I had the attitude, “Who the f * * * am I?” And what I mean by that is that it wasn’t my job to come up with what the “best” solution to the problem at hand, but rather to determine what the solution the legislature/constitution determined for the problem at hand. Doing anything else was arrogant and wrong and a perversion of the rights of millions of people to govern themselves. Here, the California Supreme Court overruled a practice of society that’s been around forever, namely limiting marriage to heterosexual unions with nothing to suggest that the law had changed to do so. (And no, evidence of society’s changing attitudes doesn’t get the job done.)
They truly are evil. And yes, I mean that.
about 2 years ago
Read this from Slate about “activism” in this case:
Slate piece
about 2 years ago
And this I a can’t put any better, and fully agree with. From Hugh Hewitt:
It is appalling. Incredibly, a feverish will to power on the part of small numbers of judges is rapidly eroding a citizen’s standing as the ultimate lawgiver. Courts unbound by any sense of limits, by any sense of restraint, threaten the basic understanding that has long undergirded the Republic –that the laws proceed from the open consent of the people, and that the ultimate laws, the federal and state constitutions, are documents of fixed meaning and structure, not merely window dressing on the rule of judicial elites or empty phrases waiting for elites to fill them with meaning.
Today’s ruling framed the question before the California Supreme Court this way:
That was not in fact the central question. The central question was whether the representative nature of the California state government, including its initiative provisions, would be upheld.
They were not. The California Supreme Court asserted its ultimate power today in a way that is shameful and deeply destructive of the ability of a free people to govern themselves.
From: http://hughhewitt.townhall.com/blog/g/3423522a-ff02-46af-9ab9-48e5a3d8ec2c
about 2 years ago
I completely disagree. The central issue was whether creating two classes of people violated California’s Constitution. The California supreme Court answered that question, which is its job to do, in a manner that you do not like. Hence, they are “activist” or whatever other moniker you want to give them.
Say you don’t agree with their decision – that’s fine. Don’t say they did something they had no right to do, which is absurd, since they are the highest court of the land, charged with interpreting laws and ruling on their Constitutionality.
about 2 years ago
Come on Gideon. The Constitution didn’t change, the judges did. No one in their right mind thinks that the Constitution when drafted created the rights of two men to get married. But now, because of some “enlightenment” it now means that. That’s raw naked judicial activism. Call that the “Court’s job” may be true, but completely besides the point. And by your logic, if the People of California decided to amend their constitution to ban gay marriage and the Court ignored that command, then they would have that right because it’s their job to decide cases. Whatever. A court’s job is to say what the law is, and not make it up.
Personally, I would love to see a state execute a 17 year old killer, despite what the Supreme Court said. And then I would love to see the President say, “Sorry Court, we’re just not going to enforce your judgment”. When courts simply do what they want, then the only law we really have is that everyone has to follow the courts, and that’s not really law, is it? Moreoever, what right does a court have to ask me to respect the law when judges clearly do not. I would love to sit on a jury where one of these judges had some tort committed that really screwed up their rights–I would simply vote in favor of the tortfeasor. Why? Because they have, in my view, completely abdicated any right to be treated in accordance with law since they so obviously flout it. And, to be honest, I would be very very hard pressed to vote to convict if someone committed a crime against these lawless judges. Very hard pressed. Is that harsh, maybe, but so is withdrawing the right of the people to govern themselves? And people who flout the law like that have no claim on me to follow it with respect to situations they find themselves in.
about 2 years ago
Come on SPO. Where does it state in the California Constitution that marriage is between a man and a woman? It does not. Which is why there are people seeking a Constitutional amendment to provide that.
What it does state is that the state shall provide equal protection of its laws.
That’s interpretation of the Constitution, not activism.
about 2 years ago
You have it exactly backwards. Exactly backwards. There is nothing in the Ca. Constitution that evinces an intent, hitherto unknown, that forces the people of California to recognize gay marriage. That people have to resort to a constitutional amendment to rein in judges is just nuts.
about 2 years ago
You still haven’t pointed to a provision of the California Constitution that limits marriage to men and women. That’s because there isn’t one.
about 2 years ago
That’s not the issue. The issue is whether the California Constitution withdraws the power from the legislature to decide. It doesn’t.
about 2 years ago
The same legislature that twice voted to legalize same-sex marriage, only to have it vetoed by the Governor, saying he’d like the court to decide?
about 2 years ago
A red herring, and you know it. That the political branches don’t decide doesn’t somehow mean that the State’s EPC gets to be changed.
about 2 years ago
A fascinating exchange prompting me to ask how the rights of any minority (50% -1) are protected in a democracy?