California Supreme Court invalidates citizen initiative prohibiting gay marriage
 Today the California Supreme Court announced a ruling, by a majority of 4 to 3, that the citizen initiative of several years ago which prohibits recognition of gay marriage was "unconstitutional" under the California state constitution.

I scanned over the majority opinion (about 140 pages) and read the two dissents. The three dissenting judges agreed that the 4 member majority is simply reading its own prejudices into the California state constitution. There is no explicit language in that document that specifically says that homosexuality cannot be considered in law, or that there is an absolute right of any person to marry anyone else (the majority specifically asserted that its ruling does not serve as a precedent for incestuous or polygamous marriages, but their rationale for the distinction–the rejection of such marriages by the people of California–applies equally to homosexual marriage). 

The majority argued that (a) even though the majority of California voters specifically voted to prohibit gay marriage and (b) the legislature has not passed any laws to specifically authorize gay marriage, the fact that the legislature has passed a Domestic Partners Act that gives homosexual couples virtually all the legal rights of married couples is a de facto recognition by the legislature that homosexual marriage is appropriate, and therefore it is a right protected by the state constitution. 

The dissenting justices pointed out that the majority is acting outside its own constitutional authority and creating what is clearly a new “constitutional right” out of whole cloth, without precedent in California constitutional law, and specifically contrary to the explicit intent and understanding of the constitution by both the legislature and the voters in enacting the whole complex of laws that specifically address the topic. 

One thing this decision does is warn other states that they cannot allow any kind of “domestic partner” law to take effect, because it will be seized on by advocates of gay marriage in state courts to become an official endorsement of a view that the state’s constitution recognizes gay marriage. A state cannot go part way to gay marriage and hold the line. 

The city of San Francisco was already issuing marriage licenses to gay couples despite the clear illegality of them under the state initiative passed in 2000 by voters. It will immediately resume doing so.

The next step will be that gay couples in Utah and other states will get married in San Francisco and then demand that state and local governments in Utah recognize their marriage as valid. Any resistance will result in litigation, which will tie up every state in the union (except for Massachusetts and California) in lawsuits. 

I think one of the possible outcomes of this is that John McCain is going to have to get off the fence about a Federal marriage amendment and recognize that the Federal government cannot avoid getting involved in the issue, because marriage is an interstate matter involving people moving to other states and people wanting to get divorced in other states and making child custody and property and support claims in other states. Senator Bennett is going to have to revisit the issue too. His opposition to a Federal constitutional amendment killed it last time around. 

Depending on how it plays out, this could be a major issue in the elections this Fall. But if the Republican Party refuses to take a stand on the issue nationally, under the lead of McCain, it is going to lose the support of its normal constituencies and will be relegated to another long term position of minority power because it does not stand for an alternative to the “progressive” agenda. 

Because there are hundreds of thousands of Mormons in California, this is going to have much larger consequences for the Church than the Massachusetts decision did. The tendency of all pro-homosexual legislation in California is to punish anyone that does not support the legislation. I fully expect that homosexual activists will look for ways to punish churches that hold fast against endorsement of homosexuality, and attack their tax exemption as charitable organizations, both for property taxes and income taxes. Rather than settling anything, this decision will be like Roe v. Wade and create perpetual wounds of lawsuits that attempt to force churches and their members to accept and endorse behavior that is morally objectionable, with little support from the courts for the right of religious freedom on such issues. 

And the comment is correct that there will clearly be a movement to recall the members of the Supreme Court majority at the next opportunity. After all, since this is a matter of them abusing their authority, what remedy do the citizens have other than that? 

Personally, I think this issue should be the basis for a broader based constitutional amendment beyond one merely reinstating normal marriage. The abuse by courts of their authority to interpret constitutions should be remedied by the ability of Congress and legislatures to overrule findings of unconstitutionality by a specific legislative majority. Courts are just made of judges who are (usually) lawyers. They are not inherently wiser in judgment than the majority of the people. If that were so, we wouldn’t have elections. We would just let judges decide everything.