@Debra Law,
I have made efforts to controvert the "truth" you espouse. The problem that exists is that you won't listen to the other side in this argument. You only listen to words that confirm what you hold to be true. Maybe if you won't listen to my words, you'll listen to the words of Justice Baxter from our CA Supreme Court in his dissending oppinion to the ruling that overturned Proposition 22...
"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 fundamental provisions 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.)
History confirms the importance of the judiciary's constitutional role as a check against majoritarian abuse. Still, courts must use caution when exercising the potentially transformative authority to articulate constitutional rights. Otherwise, judges with limited accountability risk infringing upon our society's most basic shared premise"the People's general right, directly or through their chosen legislators, to decide fundamental issues of public policy for themselves. 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.
The California Constitution says nothing about the rights of same-sex couples to marry. On the contrary, as the majority concedes, our original Constitution, effective from the moment of statehood, evidenced an assumption that marriage was between partners of the opposite sex. Statutes enacted at the state's first legislative session confirmed this assumption, which has continued to the present day. When the Legislature realized that 1971 amendments to the Civil Code, enacted for other reasons, had created an ambiguity on the point, the oversight was quickly corrected, and the definition of marriage as between a man and a woman was made explicit. (Maj. opn., ante, at pp. 792"801.) The People themselves reaffirmed this definition when, in the year 2000, they adopted Proposition 22 by a 61.4 percent majority.
Despite this history, plaintiffs first insist they have a fundamental right, protected by the California Constitution's due process and privacy clauses (Cal. Const., art. I, §§ 1, 7, subd. (a)), to marry the adult consenting partners of their choice, regardless of gender. The majority largely accepts this contention. It holds that “the right to marry, as embodied in article I, sections 1 and 7 of the California Constitution, guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to … enter with [one's chosen life partner] into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.” (Maj. opn., ante, at p. 829, fn. omitted.) Further, the majority declares, a “core element[ ] of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships.” (Id., at p. 830.)
To the extent this means same-sex couples have a fundamental right to enter legally recognized family unions called “marriage” (or, as the majority unrealistically suggests, by another name common to both same-sex and opposite-sex unions), I cannot agree. I find no persuasive basis in our Constitution or our jurisprudence to justify such a cataclysmic transformation of this venerable institution.
Fundamental rights entitled to the Constitution's protection are those “which are, objectively, ‘deeply rooted in this [society's] history and tradition,’ [citations], and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice could exist if they were sacrificed,’ [citation].” (Washington v. Glucksberg (1997) 521 U.S. 702, 720"721 [138 L. Ed. 2d 772, 117 S. Ct. 2258] (Glucksberg); see, e.g., Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 940 [72 Cal. Rptr. 2d 871, 952 P.2d 1139].) Moreover, an assessment whether a fundamental right or interest is at stake requires “a ‘careful description’ of the asserted fundamental … interest. [Citations.]” (Glucksberg, supra, at p. 721; Dawn D., supra, at p. 941.)
These principles are crucial restraints upon the overreaching exercise of judicial authority in violation of the separation of powers. Courts have “ ‘always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.’ [Citation.] By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore ‘exercise the utmost care whenever we are asked to break new ground in this field,’ [citation], lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences” of judges. (Glucksberg, supra, 521 U.S. 702, 720.)
It is beyond dispute, as the Court of Appeal majority in this case persuasively indicated, that there is no deeply rooted tradition of same-sex marriage, in the nation or in this state. Precisely the opposite is true. The concept of same-sex marriage was unknown in our distant past, and is novel in our recent history, because the universally understood definition of marriage has been the legal or religious union of a man and a woman. "
--------------------------------
On the Issue of Homosexuals as a minority, Justice Baxter states...
"The concept that certain identifiable groups are entitled to extra protection under the equal protection clause stems, most basically, from the premise that because these groups are unpopular minorities, or otherwise share a history of insularity, persecution, and discrimination, and are politically powerless, they are especially susceptible to continuing abuse by the majority. Laws that single out groups in this category for different treatment are presumed to “reflect prejudice and antipathy"a view that those in the burdened class are not as worthy or deserving as others. For these reasons, and because such discrimination is unlikely to be soon rectified by legislative means,” the deference normally accorded to legislative choices does not apply. (Cleburne, supra, 473 U.S. 432, 440, italics added; see also San Antonio School District v. Rodriguez (1973) 411 U.S. 1, 28 [36 L. Ed. 2d 16, 93 S. Ct. 1278] [noting relevance, for purposes of identification as suspect class, that group is “relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process”].)
Recognizing that the need for special constitutional protection arises from the political impotence of an insular and disfavored group, several courts holding that sexual orientation is not a suspect class have focused particularly on a determination that, in contemporary times at least, the gay and lesbian community does not lack political power. (High Tech Gays, supra, 895 F.2d 563, 574; Conaway v. Deane, supra, 932 A.2d 571, 609"614 [same-sex marriage]; Andersen v. State, supra, 138 P.3d 963, 974"975 [same].)
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. 842, 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. 821), 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."
On the Court’s right of overturning Prop 22
"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, 222.)
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."
