Darth Mischievous posted:

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A better example of a debatable conservative ruling by the judiciary would be affirmative action laws struck down due to being unconstitutional. Surely, progressives here can come up with better supportive arguments.



Over the past 40 years, social issues, that have flimsy Constitutional grounds, have been forced through to society, thereby removing the rights of the people to determine for themselves social issues.... as long as these issues that do not actually infringe on actual (not made up) Constitutional rights.

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Darth Mischievous posted:

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I don't have to agree with a particular social issue to consider it valid or invalid in the eyes of the law. Were the people of California to decide this issue, I would not agree with it, but I would think it legitimately decided.... as with all such issues that are supposed to be determined by the people.

One branch of government alone does not and should not have the ulitmate power to decide how society governs itself.

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Darth Mischievous posted:

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Bush v. Gore is a non sequitur. Changing the rules in the middle of an election by the Florida Supreme Court along with selective recounting of ballots isn't comparable to invention and legal recognition of rights that involve social issues and social change that is supposed to be determined by the people.

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Darth Mischievous posted:

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Over the past 40 years, social issues, that have flimsy Constitutional grounds, have been forced through to society, thereby removing the rights of the people to determine for themselves social parameters that do not actually (not falsely) infringe on actual (not made up) Constitutional rights.

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AaylaSecurOWNED posted:

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The people of California decided to infringe on a protected right, and the Supreme Court decided to protect those marginalized by the people.
That is what the Supreme Court is there to do when the legislature, the people, and the executive branch all fail to protect the rights of a minority.

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Jedi_Keiran_Halcyon posted:

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Darth Mischievous posted:
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Bush v. Gore is a non sequitur. Changing the rules in the middle of an election by the Florida Supreme Court along with selective recounting of ballots isn't comparable to invention and legal recognition of rights that involve social issues and social change that is supposed to be determined by the people.
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No on said it was similar. Guy called noted it as "the most egregious case of judicial activism in recent years" which, given the scope of its ramifications, it was.

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Darth Mischievous posted:

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First, marriage is a priviledge defined and recognized by State law that is determined by the people.

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AaylaSecurOWNED posted:

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Lulz: I was going to read the decision for this thread, but it turns out the majority opinion alone is 121 pages. 176 if you count the concurring and dissenting opinions. Also, Lexis and Westlaw don't have headnotes for it yet, so I think I'll hold off.

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In California, the political emergence of the gay and lesbian community is
particularly apparent. In this state, the progress achieved through democratic
means — progress described in detail by the majority — demonstrates that,
despite undeniable past injustice and discrimination, this group now “ ‘is
obviously able to wield political power in defense of its interests.’ ” (Maj. opn.,
ante, at p. 98, quoting the Attorney General’s brief.).
Nor are these gains so fragile and fortuitous as to require extraordinary state
constitutional protection. On the contrary, the majority itself declares that recent
decades have seen “a fundamental and dramatic transformation in this state’s
understanding and legal treatment of gay individuals and gay couples” (maj. opn.,
ante, at p. 67), whereby “California has repudiated past practices and policies that
denigrated the general character and morals of gay individuals” and now
recognizes homosexuality as “simply one of the numerous variables of our
common and diverse humanity” (ibid.). Under these circumstances, I submit, gays
and lesbians in this state currently lack the insularity, unpopularity, and consequent political vulnerability upon which the notion of suspect classifications
is founded.

The majority insists that a determination whether a historically disfavored
group is a suspect class should not depend on the group’s current political power.
Otherwise, the majority posits, “it would be impossible to justify the numerous
decisions that continue to treat sex, race, and religion as suspect classes.” (Maj.
opn., ante, at p. 99. fn. omitted.)

I do not quarrel with those decisions. At the times suspect-class status was
first assigned to race, and in California to sex and religion, there were ample
grounds for doing so. They may well still exist in some or all of those cases.
Moreover, I do not suggest that once a group is properly found in need of extraordinary protection, it should later be “declassified” when circumstances
change.

I only propose that, when, as here, the issue is before us as a matter of first
impression, we cannot ignore current reality. In such a case, we should consider
whether, despite a history of discrimination, a particular group remains so
unpopular, disfavored, and susceptible to majoritarian abuse that suspect-class
status is necessary to safeguard its rights. I would not draw that conclusion here.

Accordingly, I would apply the normal rational basis test to determine
whether, by granting same-sex couples all the substantive rights and benefits of
marriage, but reserving the marriage label for opposite-sex unions, California’s
laws violate the equal protection guarantee of the state Constitution. By that
standard, I find ample grounds for the balance currently struck on this issue by both the Legislature and the People.

First, it is certainly reasonable for the Legislature, having granted same-sex
couples all substantive marital rights within its power, to assign those rights a
name other than marriage. After all, an initiative statute adopted by a 61.4 percent
popular vote, and constitutionally immune from repeal by the Legislature, defines
marriage as a union of partners of the opposite sex.

Moreover, in light of the provisions of federal law that, for purposes of
federal benefits, limit the definition of marriage to opposite-sex couples (1 U.S.C.
§ 7), California must distinguish same-sex from opposite-sex couples in
administering the numerous federal-state programs that are governed by federal
law. A separate nomenclature applicable to the family relationship of same-sex
couples undoubtedly facilitates the administration of such programs.

Most fundamentally, the People themselves cannot be considered irrational
in deciding, for the time being, that the fundamental definition of marriage, as it
has universally existed until very recently, should be preserved. As the New Jersey Supreme Court observed, “We cannot escape the reality that the shared
societal meaning of marriage — passed down through the common law into our
statutory law — has always been the union of a man and a woman. To alter that
meaning would render a profound change in the public consciousness of a social
institution of ancient origin.” (Lewis v. Harris, supra, 908 A.2d 196, 922.)

If such a profound change in this ancient social institution is to occur, the
People and their representatives, who represent the public conscience, should have
the right, and the responsibility, to control the pace of that change through the
democratic process. Family Code sections 300 and 308.5 serve this salutary
purpose. The majority’s decision erroneously usurps it.

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The California Domestic Partner Rights and Responsibilities
Act of 2003 (DPA), and other recent legislative changes, represent a dramatic and
fundamental transformation of the rights of gay and lesbian Californians. It is a
remarkable achievement of the legislative process that the law now expressly
recognizes that domestic partners have the same substantive rights and obligations
as spouses.

The majority, however, fails to give full and fair consideration to the DPA.
Indeed, the majority says its conclusion that “California’s current recognition that
gay individuals are entitled to equal and nondiscriminatory legal treatment” is not
grounded on the DPA.

Instead of recognizing the equality
conferred by the Legislature, the majority denigrates domestic partnership as “only
a novel alternative designation . . . constituting significantly unequal treatment,”
3
and “a mark of second-class citizenship.” (Maj. opn., ante, at pp. 103, 104.)

Without foundation, the majority claims that to hold the domestic partnership laws
constitutional would be a statement “that it is permissible, under the law, for
society to treat gay individuals and same-sex couples differently from, and less favorably than, heterosexual individuals and opposite-sex couples.” (Maj. opn.,
ante, at p. 118.) This is simply not so. The majority’s narrow and inaccurate
assertions are just the opposite of what the Legislature intended. To make its case
for a constitutional violation, the majority distorts and diminishes the historic
achievements of the DPA, and the efforts of those who worked so diligently to
pass it into law.

The majority refers to the race cases, from which our equal protection
jurisprudence has evolved. The analogy does not hold. The civil rights cases
banning racial discrimination were based on duly enacted amendments to the
United States Constitution, proposed by Congress and ratified by the people
through the states. To our nation’s great shame, many individuals and
governmental entities obdurately refused to follow these constitutional imperatives
for nearly a century. By overturning Jim Crow and other segregation laws, the
courts properly and courageously held the people accountable to their own constitutional mandates. Here the situation is quite different. In less than a
decade, through the democratic process, same-sex couples have been given the
equal legal rights to which they are entitled.

What is unique about this case is that plaintiffs seek both to join the
institution of marriage and at the same time to alter its definition. The majority
maintains that plaintiffs are not attempting to change the existing institution of
marriage. (Maj. opn., ante, at p. 53.) This claim is irreconcilable with the
majority’s declaration that “[f]rom the beginning of California statehood, the legal
institution of civil marriage has been understood to refer to a relationship between
a man and a woman.” (Id. at p. 23, fn. omitted.) The people are entitled to
preserve this traditional understanding in the terminology of the law, recognizing
that same-sex and opposite-sex unions are different. What they are not entitled to
do is treat them differently under the law.

The distinction between substance and nomenclature makes this case
different from other civil rights cases. The definition of the rights to education, to
vote, to pursue an office or occupation, and the other celebrated civil rights
vindicated by the courts, were not altered by extending them to all races and both
genders. The institution of marriage was not fundamentally changed by removing
the racial restrictions that formerly encumbered it. Plaintiffs, however, seek to
change the definition of the marital relationship, as it has consistently been
understood, into something quite new. They could certainly accomplish such a
redefinition through the initiative process. As a voter, I might agree. But that
change is for the people to adopt, not for judges to dictate.

The voters who passed Proposition 22 not long ago decided to keep the
meaning of marriage as it has always been understood in California. The majority
improperly infringes on the prerogative of the voters by overriding their decision.
It does that which it acknowledges it should not do: it redefines marriage because
it believes marriage should be redefined. (See maj. opn., ante, at pp. 4-5, 109.) It
justifies its decision by finding a constitutional infirmity where none exists.

Restraint is the hallmark of constitutional review. “[I]f the judiciary is to
fulfill its role in our tripartite system of government as the final arbiter of
constitutional issues, it cannot hope to escape the tension between legislative
policy determinations and the challenges raised by those who would seek
exceptions thereto. We can, however, while entertaining such challenges, seek to
hold the tension in check by always presuming the constitutional validity of
legislative acts and resolving doubts in favor of the statute.” (Dawn D. v. Superior
Court (1998) 17 Cal.4th 932, 939, italics added.)

The majority abandons this judicious approach. Instead of presuming the
validity of the statutes defining marriage and establishing domestic partnership, in
effect the majority presumes them to be constitutionally invalid by characterizing
domestic partnership as a “mark of second-class citizenship.” (Maj. opn., ante, at
p. 118.) This judicial presumption contravenes the express intent of the
Legislature to equalize the rights of spouses and domestic partners.

The principle of judicial restraint is a covenant between judges and the
people from whom their power derives. It protects the people against judicial
overreaching. It is no answer to say that judges can break the covenant so long as
they are enlightened or well-meaning.