Posted on 05/16/2008 9:27:56 AM PDT by Congressman Billybob
The critical question in the 4-3 decision of the California Supreme Court to require homosexual marriages in that state is not whether that is a better policy. It is, who should decide that question? The majority said that this was a “good” policy, and they would therefore require it. The minority said that the court had no business making that decision.
Back up a little bit. Like almost all states, California had a statute which defined marriage as involving “one man and one woman.” Not two men. Not one man and four women. Not a man, a woman, and a sheep dog. Just one man and one woman. There was no doubt that the people of California approved of that law, because they passed it in a referendum in 2000 with an approval rate of 61.4%
This is not to suggest that states without the referendum (half of them) less express the will of their citizens when their elected representatives pass such laws on their behalf. Legislators, after all, face the voters in elections. And if the voters are really unhappy with what their legislators have done, they can summarily retire them from public office.
Back up a little more. What were we taught in civics class in the 10th or 11th grade? The government of the United States has three branches: legislative, executive and judicial. Each have specific purposes. None are supposed to steal (”usurp” was the old-fashioned word) the functions of the other two. And each had “checks and balances” against the others in case the others got out of line.
What was the function of the legislative branch? Let’s not always see the same hands. Yes, Sally? “The function of Congress is to write the laws on behalf of the people.” Very good. Now if you live in California, what is the function of its legislature? “California’s legislature writes the laws for the people of California.” Good, Sally.
What is the function of the judicial branch? Yes, Johnny? “The judges are supposed to enforce the laws when people break them.” That’s part of the answer. The other part is what’s called the “civil” law. To provide damages for citizens who’ve been harmed by other citizens.
Back up a lot. Why does the United States of America exist in the first place? Yes, Tommy Jefferson? “King George of England was a tyrant. But government derives its just powers from the consent of the governed. I wrote that in my copy book.” Very good, Tommy. Save that. You might have a use for those words in 1776.
Why do federal judges and most state judges not face elections? This one is a toughie. Yes, Jimmy Madison? “Judges are appointed for life and don’t face elections so they will have the independence to decide each case as it requires. But judges should never inject their personal opinions into their decisions.” Good, Jimmy.
Tommy, no need to be so vigorous in waving your hand. I see you. Go ahead. “The federal judges are the most dangerous branch because when they seize power that belongs to the other branches, they will never give it up.” Tommy, your logical abilities are far beyond the average 12-year-old. Hold that thought. There’s going to be a United States of America some day, and in a couple centuries, the citizens may need to consider what you just said.
No state has passed a statute permitting homosexual marriages. Two states, Massachusetts and California, now have that provision because a one-judge majority on their highest courts, forced the issue and rewrote the laws. So far, the Massachusetts legislature has prevented a citizen petition to restore its marital law from going on the ballot. In California, such a petition will go on its ballot this fall, to write the subject into the California Constitution and put it beyond the reach of its Supreme Court.
Some might think it trivial to reduce such an important subject to a teacher in a class of 12-year-olds. But the subject really is so simple that a young child can understand it. It only becomes complicated when sophists get a hold of it, whether they are lawyers who disrespect the Constitution and the will of the people, or worse, lawyers in black robes who sit on the bench and disrespect the Constitution and the people.
Read what the Declaration of Independence says about the abuses from King George III. Ask yourself whether we are any better off if the same type of abuses are caused by American judges who wear black robes and carry gavels rather than crowns. I say we’re back to square one. What do you say, Tommy? Jimmy?
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About the Author: John Armor has spent almost 40 years working with all branches of the federal government, plus state and local officials. He lives and works on a mountaintop in Highlands, NC. John_Armor@aya.yale.edu
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John / Billybob
Good one, CB. Keep working for the sake of conservatism and a return to the principles of the U.S. Constitution.
All Hail King Court! Just let the judges rule.
Ahh, but the good news is that California’s judges, even those on the Supreme Court, do face re-election races, as Rose Bird learned so well. Perhaps another recall drive is in order.
Highly recommended reading for those that haven't yet picked them up.
Excellent post, John. Thanks to the sophist bilge our government schools have peddled to students for several generations, these basic facts sadly need re-stating. Our country has really lost its way.
We'll written piece, John.
Can this decision be appealed to the U.S. Supreme Court?
Not a recall...impeachment is the remedy for encroaching on what is the purview of the legislature and the people.
John / Billybob
John / Billybob
Suppose a gay couple gets married in California and moves to a state that does not recognize the marriage. When the gay couple attempts to get a benefit reserved for married couples in the new state, would that not set up a “full faith and credit” fight in the new state? And if so, would the case not have to be resolved at the federal court of appeals level?
Some state courts have already approached this issue, ruling that since the “marriage” isn't recognized, the domestic laws of that state offer no relief.
John / Billybob
What do they need to do to succeed there?
Can we help?
Exactly. In a functioning republic it is now up to the legislature to do its job and represent the will of the people which by extension is the law of the land. If they choose to support the rogue judiciary instead then they have abdicated their duty and set themselves against the law and the will of the people respectively.
Regime change in the courts. Impeach activist judges!
Then the people will elect them to Congress.....i.e.Alycee Hastings (sp).
I’m going to have to finish my coffee before checking my comments page in the morning anymore. Darned near ruined a keyboard here.
As I understand, it's too late to get more signatures there, the deadline has passed. Now, they're in the position of validating the signatures already received. If they don't get to the magic number of 10% of active voters, then the measure does not make the ballot. As a practical matter, invalidities occur frequently, therefore you must get many more signatures than what is nominally called for.
Frankly, I don't think it will pass even if it gets on the ballot. There will be a lot of enthusiasm among California liberals for Barry O's campaign, and unless McCain turns around from what I've perceived as squishiness on gay marriage, it's not even going to become a campaign issue on the national level. It's much more likely to affect local races in swing districts or states, most notably Florida.
One thing the case did show is that if a state tries to adopt civil union or domestic partnership as a 'compromise' measure, that state's Supreme Court can use that as 'intent' to create equality, and just give it that extra push towards wiping out a nominal distinction. That would appear to give ammunition to forces in red states that oppose any kind of official recognition of homosexual relationships.
We're moving towards a situation where we have red states with no recognition of anything besides traditional marriage, and blue states that have full hetero and homosexual marriage. At the time that bans on interracial marriage were struck down by the SCOTUS in 1976, only a small handful of states had such bans on their books, and they were often unenforced.
Surely, this issue will come before the Court as well, if that happens when only a minority of states have gay marriage, and the great majority do not have it (or its equivalents) the Court might just find that it can simply be a regional policy only, and not something that needs to be recognized on a national basis. I'm certain there are other exceptions to the "full faith and credit" clause of the Constitution, the SCOTUS can create another one here.
Interstate recognition of concealed carry permits, for example.
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