A few hours ago, the California Supreme Court issued its opinion in the consolidated appeal of six cases suing for a statewide declaration of the Constitutionality and legality of same-sex marriage. This coming from a progressive state that already gives the same legal privileges to same-sex partnerships that it does to heterosexual marriages.
The legal opinion (PDF) is saturated with warped interpretations of what a “fundamental right” marriage is, and why it should therefore be extended to all, regardless of sexuality. Page seven declares:
We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.
Admitting that the California Constitution does not enumerate a right to marry, the court relies upon previous judicial decrees to create the right out of thin air:
Although our state Constitution does not contain any explicit reference to a “right to marry,” past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution. (Page 49)
Being that the vote was 4-3 in favor of overturning the state’s same-sex marriage ban (passed through a proposition by that pesky thing called the “will of the people”), not all of the judges concurred with the ruling. Dissenting from the majority, Judge Baxter wrote:
I cannot join this exercise in legal jujitsu, by which the Legislature’s own weight is used against it to create a constitutional right from whole cloth, defeat the People’s will, and invalidate a statute otherwise immune from legislative interference.
…
The majority has violated these principles. It simply 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. (Page 134)
Judge Corrigan’s dissent likewise contains a refreshing admission of the separation of powers which, if respected and obeyed, requires the court to refrain from striking down the will of the people in this matter:
In my view, Californians should allow our gay and lesbian neighbors to call their unions marriages. But I, and this court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote. This court can overrule a vote of the people only if the Constitution compels us to do so. Here, the Constitution does not. (Page 154)
Frankly, government should not be allowed to define what marriage is, nor have control over its implementation and management. But regardless of the lack of moral authority, government feels inclined to favor heterosexual marriage to encourage the support and propagation of the family, the basic unit of society. Any voluntary corruption of or deviation from that ideal fosters numerous problems: familial, civil, social, etc. Thus, historically, government has encouraged heterosexual marriage through certain policies, tax breaks, and other methods.
But as society increases in wickedness and people clamor for “equal justice” and “fundamental rights” (terms with which they are obviously confused), easy legal avenues are sought out to overturn the will of the majority and create new rights out of warped interpretations of established laws.
Judge Baxter was right: this court’s ruling is nothing more than legal jujitsu.
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