Now for the good news on the judicial front (see last post). Last week the 1st District Court of Appeals reversed a lower court’s decision in 2005 that CA’s laws against same-sex marriage were unconstitutional. I’m not excited about this ruling simply because it agreed with my own position, but rather because it demonstrated the judicial restraint that is integral to a properly functioning judiciary, and a properly functioning democracy. Listen to what the justices had to say in this 2-1 decision:

 

“We conclude California’s historical definition of marriage does not deprive individuals of a vested fundamental right.”

“Courts simply do not have the authority to create new rights, especially when doing so involves the definition of so fundamental an institution as marriage.”—William McGuiness, presiding justice of the 1st District Court of Appeal

“Marriage has historically stood for the principle that men and women who may, without planning or intending to do so, give life to a child should raise that child in a bonded, cooperative and enduring relationship.”—Justice Joanne C. Parrilli, in a concurring opinion. [She noted that it is hardly irrational for the state to recognize this, and thus privilege marriage to a man and woman].

A resounding YES! I’m so happy to know there are still courts out there who are interested in justice, but recognize that their job is to interpret the law, not make the law. It’s a breath of fresh air; a departure from the many cases in which judges impose their moral views on the rest of America under the rubric of interpreting the law.

 

As you can guess, not everyone was happy with the decision. Shannon Minter of the National Center for Lesbian Rights, claims that the “majority abdicated their judicial responsibility.” How? “It is incorrect and unfair to say that the courts don’t have the responsibility to decide whether excluding a group of people from marriage is constitutional. That is their job. That is exactly what the governor said.”

 

She is referring to a statement the Governator made last year (I believe) when he was faced with having to sign or veto a bill that would approve same-sex marriage in CA. He said the issue was one the courts needed to decide. Interestingly he vetoed the bill on the grounds that the people had decided the issue in 2000 through a ballot initiative (Prop 22), and the will of the people should not be overturned. I think he was right about the latter, but wrong about the former. Personally, I think the Governator was trying to find any way he could to pass the responsibility to someone else for the decision he had to, and did make. Clearly he was not expressing the way the government is supposed to function, and Minter should no better. What the courts are supposed to do is determined by our constitution, not the comments of a governor. Rather than abdicating their judicial responsibility, the court submitted to it.

 

San Francisco attorney, Dennis J. Herrera, was not happy either. He said, “If other courts had followed this reasoning, schools would still be segregated, and married couples would not be able to use birth control.” That may be true, but as I have argued previously on this blog (when it was still an e-blog), while the opinion of the justices on these issues may have been the right opinion, they thwarted and undermined democracy by ignoring the will of the majority:

 

[T]he Supreme Court is not the place to decide social issues such as slavery, abortion, same-sex marriage, interracial marriage, access to contraception, etc. Those issues properly belong to the people to decide through their elected legislators. Was it wrong to have slavery legal in this country? Yes! Was it wrong to prevent a white and black couple from marrying? Yes! Was it wrong to discriminate and segregate based on gender and race? Yes! But the Court is not the place to correct such social injustices. I’m glad we no longer have unjust laws against interracial marriages, but I am upset that the Supreme Court took it upon themselves to decide those matters for us. The people should have decided them. The Supreme Court is so haughty that it thinks it can wrest away every political issue from the states and decide it for us, and then we have to simply bite our tongues. Nonsense!

There’s more I would like to say about this, so I will do so in a new post.

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