May 19, 2008
“Th’ abuse of greatness is when it disjoins remorse from power.” –William Shakespeare
It is not the place of the California Supreme Court (or any court) to MAKE law.
The concept of separation of powers is very clearly delineated and establishes three branches of government (Executive, Legislative, and Judicial) each of which has very narrowly defined duties and responsibilities. Regrettably, for too long, territorial imperatives have been breached so often as to become habit if not tradition.
Regardless of whatever does or not result from their recent 4-3 ruling that same-sex couples have a constitutional right to marry, the decision was wrong and overreaching.
Justice Carol Corrigan’s dissent may well foreshadow the effect of judicial overreach of pouring gasoline on a fire. She wrote in her dissent, “In a democracy, the people should be given a fair chance to set the pace of change without judicial interference. That is the way democracies work. Ideas are proposed, debated, tested. Often new ideas are initially resisted, only to be ultimately embraced. But when ideas are imposed, opposition hardens and progress may be hampered.”
And opposition to the California Supremes legislating from the bench has already started Big Time.
Mathew D. Staver is already raising money to overturn the decision. Staver, the founder and chairman of Liberty Counsel, flew to Dallas on Thursday night for a late dinner meeting with a fund-raiser. According to the New York Times the topic was how to finance a campaign for the California Marriage Protection Act, a November ballot initiative that would amend the state Constitution and effectively undo the court’s decision.
Despite her dissent, Corrigan says she (personally) would like to see gay marriage become the law of the land. However (in a rare case of judicial prudence and integrity), she did not think it was the place of the court to make it so. In other words, SHE understood, it is not their job to make law. Furthermore, she fears that in so doing, the court might actually do more harm than good. And she is correct (except for those political consultants who will make big bank on the ensuing spitting match).
Activist judges have long been the bane of many conservatives. Constitutional amendments are viewed as an effective and appropriate means of stopping judges intent on exceeding their authority to legislate.
Supporters of the ruling encourage martially minded gays to hurry up and tie the knot. Opponents of the ruling want a time out until the voters have their say in November.
If there is a flood of same sex marriages only to be followed by a constitutional ban, it puts those newly weds in a peculiar limbo. However, from the supporters view, taking away a ‘right’ is far more onerous than denying a presumed right.
The battle will be big bucks expensive. Both sides say they expect to spend up to $20 million on the campaign, which will officially begin when the secretary of state puts the constitutional amendment on the ballot.
The amendment would insert 14 words into the California Constitution — “Only marriage between a man and a woman is valid and recognized in California”. That phrase is not arbitrary or capricious…it has already been heavily tested with focus groups.
Constitutional amendments like the one proposed here are preferred by some opponents to same-sex marriage because they are less likely to be overturned by the courts
Voters in 27 out of 28 states that have taken up the issue. Arizona defeated a similar initiative in 2006.
San Francisco Mayor Gavin Newsom, who jacked up the national debate in 2004 when he ordered the county clerk to issue marriage licenses to gay couples, said it would be important to the fall campaign to perform marriages as soon as possible.
Staver, of Liberty Counsel, intends to ask for a stay of the court’s ruling until voters could decide.
Newsom and gay marriage supporters are disinclined to allow voters the opportunity to contravene their preferred agenda. “As we move forward and literally tens of thousands of couples are married, the question to the voters changes,” And he is right! “It’s no longer denying something to people that they never had. It’s taking something away that they’ve already enjoyed. And that’s a much more difficult thing to do.”
However, the key issue of controversy really if isn’t gay couples can change the nomenclature of their ‘domestic partnerships’ to ‘marriage’. The key issue is a judiciary overreaching their constitutional mandate to legislate from the bench.