Thursday, May 15, 2008

Democracy in America

Eight years ago sixty-one percent of California's voters supported an initiative including this language: "only marriage between a man and a woman is valid and recognized in California." Today four California Supreme Court justices overturned that decision, saying that it violated the “fundamental constitutional right to form a family relationship.” From the AP:
In a monumental victory for the gay rights movement, the California Supreme Court overturned a voter-approved ban on gay marriage Thursday in a ruling that would allow same-sex couples in the nation's biggest state to tie the knot.

Domestic partnerships are not a good enough substitute for marriage, the justices ruled 4-3....

Outside the courthouse, gay marriage supporters cried and cheered as news spread of the decision.

The city of San Francisco, two dozen gay and lesbian couples and gay rights groups sued in March 2004 after the court halted the monthlong wedding march that took place when Mayor Gavin Newsom opened the doors of City Hall to same-sex marriages. ....

In a dissenting opinion, Justice Marvin Baxter agreed with many arguments of the majority but said the court overstepped its authority. Changes to marriage laws should be decided by the voters, Baxter wrote.
From the San Francisco Chronicle:
Baxter, writing for himself and Chin, accused the court majority of substituting "by judicial fiat its own social policy views for those expressed by the people." ....

The court "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," Baxter said.
From the third dissenting justice:
From associate justice Corrigan’s separate dissent: “The principle of judicial restraint is a covenant between judges and the people from whom their power derives.… It is no answer to say that judges can break the covenant so long as they are enlightened or well-meaning.… If there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.”
James M. Kushiner:
Let's just close down our legislatures, burn or toss our voting booths, and swear fealty to the justices of the courts.
Judges create new law, by fiat, out of their own values, and then the people must campaign to get it overturned. The people of California will probably have the opportunity to reassert democracy by constitutional amendment in November.

California's top court overturns gay marriage ban - Yahoo! News, SF Gate: State Supreme Court says same-sex couples have right to marry, Bench Memos on National Review Online
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