Out of the Mouths of "Activist" Judges

This afternoon, the California Supreme Court recognized that same sex couples have a constitutional right to marry under the State Constitution.

In view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.

I'm not a lawyer nor do I play one on television but this quote is simple and to the point. And of course it makes all the sense in the world. The right to form a family is a basic civil right. So basic. So right.

But I haven't even gotten to the really good part yet.

We all know that in our societal debate about this issue, it is the word "marriage" that trips many people up. It trips up political candidates, it trips up conservatives, it even trips up my mother and she believes Eileen and I should have equal treatment under the law. There is something about that word.

My four new best friends, the four California Supreme Court justices who ruled for the majority -- they get that there is something about the word too. Have a read:

...The exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children... Because of the historic disparagement of gay persons, the retention of a distinction in nomenclature by which the term "marriage" is withheld only from the family relationship of same-sex couples is all the more likely to cause the new parallel institution that has been established for same-sex couples to be considered a mark of second-class citizenship..."

Did you get that? The word "marriage" IS important. Calling it something else implies that it is not of comparable stature or equal dignity. Calling it something else just for same sex couples implies that the parallel institution is a mark of second class citizenship. (Note to self: send copy of these last two paragraphs to Clinton and Obama campaigns)

The road ahead in California will not be easy. The right wing is moving toward a constitutional amendment. The media machine on the right will be out in force and in the days ahead with their standard sound bite -- they will dismiss the decision as the result of the work of these 'activist judges."

But don't be fooled.

When I talk to my eighty year old mom tomorrow morning and we rehash the day's events (as we do every morning), I'll point out that the California Supreme court's reputation is a conservative one. I'll point out that they have been strong in upholding the death penalty. I'll point out that they frequently rule in favor of business interests. I'll point out that three of the four justices who ruled for the majority were appointed by Republican governors.

So what's the moral of the story today? We are reminded that when we make a strong case (thank you to NLCR, Lambda Legal and the ACLU) in front of fair minded judges, judges who are doing their jobs, judges who, regardless of who appointed them, evaluate cases with integrity , we win. And we are all reminded that "separate but equal" has never cut it in America. Because "separate" is simply not equal at all.

Comments

[booksnmore4you]

This was a poor decision. All this will do is ensure that "the cultural war" will continue, and with renewed vigor.

Look, no one should expect to get their full plate. Gays should accept civil unions and give up that term "marriage". Yes, give up that one word. That's it. Then the Right will shut up and we can have peace. Is that too much to ask???

[bgregs]

Tell you what, I've got an even better idea:

Gays can get married. They can even use the word, "marriage". But all of us straights will go over here and WE'LL use the term Civil Union!! Sounds like a plan, right??????

Do yourself a favor and go buy the book "The Sneetches and Other Stories" by Dr. Seuss!

[BrighterStar]

The only way you can read the constitution of California to mean this is to ignore the meaning and substitute what you want it to say. This decision has not basis in law and is totally illegitimate. California will not be a democracy as long as these judges remain on the bench. Those on the left do not care about democracy as long as they get their way. Quite sad really.

[bgregs]

And those like yourself who are claiming that they know all about democracy but are actually ruining it are morally superior, right????

What about those states where the supreme court has ruled against gay marriage, without even the benefit of a specific constitutional clause banning it? Are they not legislating from the bench?????

[DTGB]

I"m not familiar w the specific reference you're making. Please provide the clause.

[burnt]

Good post Joan.

[NABNYC]

The truth is that judges decide in advance what decision they want to make, then tell their research clerks to put together a good argument to support it.

This has nothing to do with good lawyers making a good case, and fair judges hearing it. It simply is not that mysterious or principled. Judges decide what outcome they would like to see, then have smart young attorneys working in their office come up with the rationalization for it. Look at Scalia and Roberts and the crap decisions they come up with, overturning Brown vs. Board of Education, for example, a 50+ year old decision supposedly set in stone by stare decisis. But the neocons want segregation made legal, so Scalia comes up with some rationalization to support the outcome.

We should not mystify the legal process. Most judges come straight out of the local political parties and their decisions reflect political realities. I fully support the right of gay people to marry. But the judges' decision simply reflects the fact that California is a liberal state with lots of gay people and nobody cares if they get married.

[newshawk14]

My mother happened to be the secretary to two state supreme court justices, and did her level
best to make their decisions appear more erudite. I don't think you know what you're talking
about, and your analysis is far to cynical, and is quite dependent on the state in question. i
happen to feel that the CA supreme court, made a careful and tightly reasoned decision.

[rextrek]

I live in New Jersey - and Hopefully this porgressive state will be Next to Give full Equality!

[newshawk14]

The main reason, why the word marriage should be accepted, is it gives gays access to a huge
body of common law, rather than have to create a separate parallel body of law. I feel that only civil
authorities, such as justices of the peace, should be required to perform the ceremony, and it
should be a matter of consience tor various the religions.

[ScroogeandMarleyLLC]

Marley and I are ecstatic about this. It's about goddam time this country enters the 21st Century!