Advertise Here

Deliver your message to thousands of readers every day.

Our readers are influential opinion makers - politicians, journalists and activists.

Learn more about ads.

About Us

Frank D. Russo

The California Progress Report is published by Frank D. Russo, a longtime observer of and participant in California politics.

About Frank Russo.
About California Progress Report.

Got a news tip? Want to write a guest column? Contact Frank here.

Sponsors

Books

The California Supreme Court Had No Other Choice on Same Sex Marriage—Justice Delayed is Justice Denied

frankrusso-small.jpg By Frank D. Russo

The landmark California Supreme Court decision on marriage is a teachable moment for us to understand the role of the courts and their place along side the other branches of government and even the “will of the people” as expressed in ballot initiatives.

The rule of law in our society and the can easily get obscured in the often heated discussions and the frame that the right wing likes to use whenever they do not like a decision—by accusing courts of legislating.

And it comes from folks who should know better but without thinking have to put it in the old frame. The best example comes from Robert Villines, the leader of the Republicans in the legislature. From the Sacramento Bee, we read Villines reacting to the Court’s decision with this zinger:

“I am very disappointed that the California Supreme Court, by the narrowest of margins, would allow their own personal partisan views to get in the way of their duty to uphold the rule of law by thwarting the will of the overwhelming majority of Californians who voted in support of Proposition 22.

“Fortunately, more than 1 million Californians have signed ballot petitions to place a constitutional amendment before the voters this November that will write into the state Constitution that marriage should be between one man and one woman. I am confident that the people of California will again overwhelmingly vote to preserve and protect traditional marriage.

“I hope that once this constitutional amendment becomes law in November, the Supreme Court will resume its appropriate role of interpreting the law, and stop legislating from the bench.” [Emphasis added]

Since 6 of the 7 Justices are Republicans, appointed by Republican governors—including 3 of the 4 in the majority, this is either ignorant or just demagoguery. What is the partisan agenda of the Republican Chief Justice Ronal George who wrote the court’s decision and who was appointed by Republican Pete Wilson? Or that of Kathryn Werdegar, another registered Republican, also appointed by Wilson? Or that Republican Justice Joyce Kennard, appointed by that Republican Governor George Deukmejian? Or are these remarks directed at the sole Democrat on the Court, Carlos Moreno who voted with his three Republican colleagues for the decision?

The Court was doing its job in our system of government. They were interpreting the California Constitution. They had no more choice to decide this case the opposite way—or to duck it (judicial restraint as Dan Weintraub characterized one of the dissenters in this morning’s Bee) than they could have or should have in deciding that California’s laws 60 years ago against interracial marriage were unconstitutional or throwing out the repeal of the Rumford Fair Housing Law that the voters approved in a ballot referendum in the 1960s.

The fact that Proposition 22, passed in 2000 by 61% to 39% is not controlling as to the Court’s proper decision on the constitutional questions the court had to decide this last week. It wasn’t when the California Supreme Court struck down Proposition 14 to make it legal to discriminate on the basis of race in deciding who to sell one’s house to—a very emotional and politically risky move for the court back then—for those who remember.

It’s a basic principle of law that when the state’s constitution conflicts with a statute—even one passed by the voters—that the constitution trumps the statute. Proposition 22 was a statute and the court would be shirking its duty if it followed an unconstitutional statute just for political reasons or expediency.

Maybe Villines and company are trying to make this into a partisan political issue—to throw red meat out to their base and whip up the vote in November. He probably spoke before reading the decision—as have most of those expressing an opinion—but at least he should get his facts right. And what he is pushing is not particularly the kind of rebranding our Republican Governor, Arnold Schwarzenegger, has in mind for his party. He is urging voters to reject any ballot proposition to overturn the Court’s decision. And he supports the Court. A position I believe most Californians will take in November.

Posted on May 18, 2008

Comments

When its a decision people like, they say the court is doing the right thing. When its a decision they do not like, suddenly its judicial activism from the bench.

The court calls gay marriage a fundamental right. Good for them. What two people do inside the bedroom is their business. Recognizing a fundamental right so individuals can be happy should have been a no brainer for everyone.

Let's move onto more important things like balancing the budget or triming wasteful spending.

Posted by: AngelDecoys at May 18, 2008 05:05 PM

The power of the court is depended upon the people willness to accept their decisions. I don't give a darn if gay people are allowed to call themselves married. Makes no difference to me one way or another. What does make a difference to me is when judges decide to do what they think is right and the will of the people be damn. If they want to have gay marraiges or marry dogs for that matter, the place that decision should be made is through our representatives. I would support it in a New York minute but not this way. I just sent a contribution to the marriage amendment and if someone gets up a recall they can count on me for that too.

Posted by: Alan Johnson at May 18, 2008 09:49 PM

Alan,

The initial proposition was not an amendment and therefore is dependent on the CA Constitution. Propositions can(and are)often thrown out if they are unconstitutional. Hense, the system working as designed.

If it was so important for those wishing to ban it, they might initially have considered getting the pre-requisite 8% of the electoral signatures instead of the 5%. As is, even if it gets the signatures, it might be a hard sell for those of us who are fiscally consevative, but socially not so.

Posted by: AngelDecoys at May 19, 2008 07:57 AM

High Courts do not always make sound decisions. In 1857 the Supreme Court ruled that persons of African descent were property and that they could never be citizens.

What right does the court have to deny children the right to a mother and a father by legitimizing same sex marriage? What happens in the bedroom is not just a private affair. But one that has far reaching implications for the health and welfare of children.

You say justice is served? Whose justice?

Posted by: Greg at May 20, 2008 12:02 AM

Once again the courts turn back the will of the people. Californians will overturn the Justices in November and send them packing.
How dare they spit on our vote!
Civil Rights for people of color took too long to be acknowledged by man. God has always acnowledged it. However, God will never acnowledge people of the same sex being legally married. The courts be damned.

Posted by: Papaduck at May 20, 2008 05:32 PM

Angel, lets get some facts straight regarding some of the justices who wrongly legislated from the bench regarding this same-sex marriage mess and the Republican governors who appointed them.

. Ron George, nominated to the California Supreme Court in 1991 by Republican Governor Pete Wilson. On Sunday, the Los Angeles Times published a very revealing post-ruling interview with Ron George. George talked about visiting the segregated South as a child and seeing "No Negro" and "No colored" signs. Unfortunately, the Chief Justice's childhood feelings illogically led him to do what no other state supreme court has done -- equate changeable homosexuality with unchangeable race, and throw out the people's vote on marriage in the process. "Asked whether he thought most Californians would accept the marriage ruling, George said flatly: 'I really don't know.'" Obviously, Californians should NOT accept this tyrannical ruling and must resist it beginning right now.

After the ruling, a man identifying himself as Pete Wilson's former press secretary, Bob Hudson, responded to a blog in the San Diego Union-Tribune:

"Having worked for Pete Wilson when he was a Senator and Governor I can tell you he was not at all a conservative and the folks who did his judicial selections when he was Gov. were way to the left of center and much of his senior staff were gay - not being judgemental there, just pointing out his appointees' votes are no surprise."

This is the consequence of pro-family citizens electing "moderate" Republican governors like Pete Wilson (1991-1998). It's also the result of not holding pro-family Republican governors like George Deukmejian (1983-1991) accountable to consistent pro-family standards. Elevating Joyce Kennard to the high court was the Duke's worst public mistake. Today, Kennard is the most anti-family judge on the bench. From his official biography: "Asked why he ran for the office of Governor, Deukmejian replied, 'Attorneys General don't appoint judges - Governors do.' During his eight-year term, Deukmejian appointed 1,000 judges, and by the time he left office, he had appointed the majority of California State Supreme Court Justices then serving on the bench.”

Posted by: Darrell Northam at May 20, 2008 10:31 PM

Darrell,

Ironic then that the voters who wanted to ban gay marriage have opened this Pandora's box. Even if the marriage amendment passes, it will only take 1 legally married couple to relocate to Texas (or another state), challenge it, and start the ball rolling up through Federal courts. My guess would be you will see gay marriage hit SCOTUS within the next 10 years. Whether SCOTUS reaffirms it or not maybe another question. It is now going to the national level whether people like it or not.

Even my wife thinks we should be focusing on more important things here in CA. Money better spent pushing propositions that are more important.

Posted by: AngelDecoys at May 21, 2008 09:24 AM

Post a comment




Remember Me?

(you may use HTML tags for style)

Get email updates!

Get Email Updates

Want the California Progress Report by email? Once a week, we'll send you the latest and greatest headlines.



© 2008 California Progress Report Our copyright and fair use policy.
Powered by Mandate Media. Logo design by Jane Norling.

RSS

Stat tracker