The California Supreme Court Lays Down the New Law on Marriage, at Least Until November

Conservatives often divide over what are called "social issues."  This is because there is a strain of libertarian philosophy that believes the government should stay far away from any unnecessary intrusions into personal autonomy.  Many libertarians thus support abortion rights and same sex marriage.
 
These are distinctly minority positions within the Republican Party, but not insignificant numbers of Republicans hold to them.  Many activists who want low taxes could care less about abortion, while many deeply religious conservatives who support protecting life in the womb and traditional marriage don't mind the idea of higher taxes if they are used to support anti-poverty programs in Africa or earth stewardship initiatives.
 
Anyone who has been around the GOP longer than a year knows that he or she cannot hope to speak for the "party" as a whole, and that coalitions always have been and always will be messy things, difficult to nurse along and requiring compromise. Well, most of the time.  This fall, four of seven justices of the California Supreme Court have launched a plan to bring the GOP together again.
 
This was not the intention of the four justices who imposed same-sex marriage on the Golden State on May 15.  The bare majority intended to publish its diktat and be done with it.  After all, they are the ones with the robes and the gavel.  They decide, we abide. Right?
 
The reaction to the judicial coup has been fast and furious. Because Proposition 22 had been passed only in 2000 and by the enormous margin of 61 to 39%, few observers thought the Court would follow the lead of the ultra-liberal Massachusetts Supreme Court and jam same-sex marriage down our collective throat.  But they did, and suddenly, conservatives and most Republicans have an issue on which 95% of the party can agree:  The California Supreme Court is out of control and needs a rebuke.  Because of the foresight of some activists, a constitutional amendment returning the definition of marriage to what it has been since the founding of the United States and of California will be on the November ballot, and a vigorous campaign to pass it will dominate the summer and fall.  Information on the amendment can be found at ProtectMarriage.com.
 
Many conservatives and Republicans support domestic partnership rights for same sex couples.  Some even support same sex marriage, though that is a distinctly minority view within the GOP and the U.S. generally.
 
But almost no self-respecting conservative or Republican can support judicial usurpations as gross as this one.  Most conservatives understand that limiting government's power requires that government be built on the bedrock of separation of powers into three branches.  They also understand that anything so radical as this decision, done by the slimmest of majorities and substituting the will of four judges for that of millions of voters doesn't deserve the dignity of being called constitutional law.
 
This has brought the party together and will keep it together.  A few high profile Republicans will urge the party to get over it and get on with it, but they will be missing the deep apprehension over this decision, and not just among religious conservatives though their dismay is intense and enduring. 
 
Courts are not to be trusted with this order of power.  If they can make up rights, they can destroy them as well.  A constitution so flexible as it can be manipulated to produce a brand-new right superior to the massive vote of the people affirming the old understanding is no constitution at all.
 
But don't believe me.  Believe Justice Marvin Baxter, a 20-year veteran of the Court who wrote this about his four colleagues' putsch:
 
Only one other American state recognizes the right the majority announces today. So far, Congress and virtually every court to consider the issue, has rejected it. Nothing in our Constitution, express or implicit, compels the majority's startling conclusion that the age-old understanding of marriage --an understanding recently confirmed by an initiative law -- is no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means. The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority.

But a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves. Undeterred by the strong weight of state and federal law and authority, the majority invents a new constitutional right, immune from the ordinary process of legislative consideration. The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will.

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. Though the majority insists otherwise, its pronouncement seriously oversteps the judicial power. The majority purports to apply certain fundamental provisions of the state Constitution, but it runs afoul of another just as fundamental-- article III, section 3, the separation of powers clause. This clause declares that "[t]he powers of state government are legislative, executive, and judicial," and that "[p]ersons charged with the exercise of one power may not exercise either of the others" except as the Constitution itself specifically provides. (Italics added.)

History confirms the importance of the judiciary's constitutional role as a check against majoritarian abuse. Still, courts must use caution when exercising the potentially transformative authority to articulate constitutional rights. Otherwise, judges with limited accountability risk infringing upon our society's most basic shared premise -- the People's general right, directly or through their chosen legislators, to decide fundamental issues of public policy for themselves.

Judicial restraint is particularly appropriate where, as here, the claimed constitutional entitlement is of recent conception and challenges the most fundamental assumption about a basic social institution.

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.

Californians of all political stripes should join to rebuke the majority of the court this November.  We are a self-governing people.  The majority of the California Supreme Court needs a remedial education in government.