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Jhud -> RE: Homosexuality in the News (5/15/2008 5:30:25 PM)
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Gret Dissenting opinion on this case by the way, by what appears to be one of three sane judges left in the state of California:
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conclusion that the age-old understanding of marriage —an understanding recently confirmed by an initiative law — is no longer valid.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 fundamentalprovisions 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.)
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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.
By the way, this is perhaps the strongest reason there is right now to vote against Obama. Obama justices will undeniably rule exactly like this, except the judges he appoints won't be limited to the insane asylum in California, but will change every statute now on the books in every state from Hawaii to Delaware.
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