Judicial Activism Run Amok

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By Edward Whelan

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[On May 15, the California supreme court, by a vote of 4 to 3, invented a right to same-sex marriage under the state constitution.  That same day, EPPC President Ed Whelan offered his critical comments on the court's ruling in a series of posts on National Review Online's Bench Memos blog.  With minor revisions, those comments are combined here.]

1.  The majority itself concedes that “[f]rom the beginning of California statehood, the legal institution of marriage has been understood to refer to a relationship between a man and a woman.”  But it fails to recognize that that is an essential characteristic of the very “right to marry” that it is construing–and that no one, until recent years, would have pretended otherwise.

Is there anything in the court’s concocted “right to marry” that would prevent it from being invoked by, say, practitioners of adult incest or plural marriage?  On the latter:  Oh, sure, the court repeatedly speaks of “couples”, but that’s because no plural marriage was at issue.  What in the court’s reasoning, what in its principles will prevent the extension of the right to marry to those whose own sense of “personal autonomy” and of “family” calls for plural marriage?  In a footnote, the majority attempts–unsuccessfully–to distinguish polygamy and incest on the ground that “our nation’s culture has considered [those] relationships inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry.”  Similar considerations would seem to explain why voters haven’t redefined marriage to incorporate same-sex couples.

2.  The majority offers the usual false assurances that its task “is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership …, but instead only to determine whether the difference in the official names of the relationships violates the California Constitution….  Whatever our views as individuals with regard to this question as a matter of policy, we recognize as judges and as a court our responsibility to limit our consideration of the question to a determination of the constitutional validity of the current legislative provisions.”  (Emphasis in original.)

Oh, please.  Spare us the pompous nonsense.  I’ll repeat, with minor changes, what I had to say about the New Jersey supreme court’s similar (but marginally more modest) ruling in October 2006:  This is, simply put, judicial activism run amok, even if it reflects the gradual judicial accretion of power over some decades.  So many judges today view judicial decisionmaking as essentially an autonomous process, unmoored from the meaning of the actual text.  Not a single justice in the majority did a simple sanity check:  Is it remotely plausible, remotely compatible with democratic principles, to read the state constitutional provisions as supporting the court’s result?

3.  California voters will likely have the opportunity in November to override the court’s error:  The California Marriage Protection Act is a voter-sponsored initiative that would amend the California Constitution to provide expressly that “Only marriage between a man and a woman is valid or recognized in California.”  The initiative is well on its way to being placed on the November ballot; it acquired far more voter signatures than needed, and those signatures appear to be holding up well in the signature-verification process.

I wish as well that voters could give the justices in the majority the Rose Bird treatment (see This Week for Nov. 4, 1986), but if I understand California law correctly, the earliest any of them will face a retention election is 2014.

4.  Chief justice George’s majority opinion reeks of judicial imperialism and rarely takes notice of those pesky yahoos called citizens.  When it does, it deals with them dishonestly.

For example, George writes:  “If civil marriage were an institution whose only role was to serve the interests of society, it reasonably could be asserted that the state should have full authority to decide whether to establish or abolish the institution of marriage.”  By “the state,” George in fact means California’s citizens, whether acting by voter initiative or through their legislators (and he posits an unattractive hypothetical argument that defenders of traditional marriage need not, and apparently did not, make).  So we have George, in the course of a flagrantly illegitimate exercise of state power, trying to cast aspersions on the legitimate power of citizens.

Even more brazenly, George later tries to defend his usurpation of the “people’s will” by arguing that the “provisions of the California Constitution itself constitute the ultimate expression of the people’s will.”  In a sense, yes–when they are faithfully and properly interpreted and applied.  But not when judicial activists like George stretch their terms beyond what the people who adopted them could possibly have meant.

5.  Given the high likelihood that the California Marriage Protection Act will be on the state ballot in November, the sensible course of action would be for the state supreme court to stay its ruling until after the November vote (or until after the initiative fails to qualify for the ballot).  If the supreme court instead permits its ruling to go into effect promptly (as it apparently intends), it will create the potential for lots of chaos and confusion.  Consider, for example, same-sex “marriages” that occur between now and November, and assume that the initiative is adopted, thus overriding the court’s ruling.  What happens, say, to a same-sex couple that has moved out of state in the meantime?  How would other states treat the “marriage”?  How would they handle requests for divorce?

There is one very bad reason for the court to have its ruling take effect in the meantime:  to try to affect the November vote by, for example, making same-sex marriage seem a fait accompli.  Somehow I suspect that is the majority’s reason.

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