• The Heritage Network
    • Resize:
    • A
    • A
    • A
  • Donate
  • California Marriage Decision Shows Constitutional Amendments Are Only Protection from Activist Courts

    The California Supreme Court’s decision Thursday to grant same-sex couples a fundamental right to marriage disregards voters’ 61 percent decision in favor of marriage as one man and one woman, a domestic partnership law already granting same-sex couples the benefits and privileges of marriage, and centuries of tradition and precedent–corroborated more recently by social science–that have set the union of one man and one woman apart from all other household forms.

    The decision is a masterpiece of judicial activism. It is long on public policy preferences, and extremely short on law. Questions like what constitutes marriage are beyond the competence and expertise of judges. Decisions like these weaken the judicial system by causing the electorate to question the legitimacy of judicial decision-making. Just as with Roe v. Wade, this decision is troubling from three angles: on the process, on the reasoning, and on the substance.

    • It was an instance of the imperial judiciary usurping the political process.
    • It was poorly reasoned, abandoning the original meaning of California’s constitution in order to invent a right to same-sex “marriage.”
    • And it was wrong on the substance, declaring that those who say marriage is between one man and woman are like racists, and disregarding the nature and purpose of marriage and the reasons for which the state has always set marriage apart from other household forms.

    The California court’s decision treats the push for same-sex “marriage” as the latest wave of the civil rights movement. The decision repeatedly declares that sexual orientation is just like race or ethnicity, and traditional views about marriage are the new racism. If the other branches of government aren’t moving fast enough to enshrine this new “civil right” and combat this new “discrimination,” then the courts will have to do it for them, just as in Brown v. Board.

    The decision shows this isn’t about “fairness.” It isn’t about health care benefits. It’s about officially elevating homosexual relationships to the unique status of marriage. Across America, proponents of official recognition of same-sex relationships appealed to tolerance and fairness. But the California decision reveals that the push for same-sex “marriage” is not about giving same-sex couples the same health-care benefits and hospital visitation rights that married couples have. The State of California already gave same-sex couples all that. Instead, the California decision reveals that the push for same-sex “marriage” is about overthrowing cultural norms that have properly set marriage between one man and one woman apart from other household forms on the basis of tradition, legal precedent, and social science evidence.

    Changing the definition of marriage has vast cultural consequences, including religious liberty implications. When the Massachusetts Supreme Judicial Court invented a version of same-sex “marriage,” the decision had a ripple effect that significantly affected Massachusetts civil society—including forcing Catholic Charities out of the adoption business, because of their religious objections to placing children with same-sex couples. Because the California court changed the legal norm to make same-sex “marriage” a fundamental right which the state is obligated to protect and enforce, it will be illegal, a violation of people’s rights, to treat same-sex “marriages” as different from traditional marriages. This will alter daily life from innumerable angles.

    The activist California Supreme Court’s decision creating a constitutional right to same-sex “marriage” was a bad decision. Usurping the question from the political branches–which in California had been willing to compromise concerning domestic partnership for same-sex couples–the Court creates an all-or-nothing question that can no longer be answered by ordinary political means. The decision makes it all the more likely that California will ban same-sex “marriage” by means of state constitutional amendment this fall to take the issue back from the hubristic judiciary.

    The California decision shows that constitutional amendments are vital to the protection of marriage. California already had a law defining marriage as between one man and one woman, but the state Supreme Court brushed it aside, claiming that the law violated the state constitution. State constitutional amendments can prevent similar acts of judicial imperialism.

    Stay tuned for more: In the fall of 2008, voters in Arizona and Florida will be considering constitutional amendments to defend marriage. Connecticut’s state supreme court is expected to hand down a decision on a same-sex “marriage” case soon. Given the importance of California, this decision is likely to have reverberations in November in contests from local offices to the Presidency.

    For more Heritage research on the importance of marriage and responding to threats to it, see:

    Matthew Spalding, Ph.D., “A Defining Moment: Marriage, the Courts, and the Constitution

    Edwin Meese III, “Marriage Amendment Protects Federalism

    Jennifer Marshall, “Marriage: What Social Science Says and Doesn’t Say

    Posted in First Principles [slideshow_deploy]

    12 Responses to California Marriage Decision Shows Constitutional Amendments Are Only Protection from Activist Courts

    1. Pingback: The Conservative Pulse: Barack defends Michelle, Constitutional Amendments, Talking with Marxist Children, and more at The Liberty Preservation Alliance

    2. W Wells , NYC says:

      What threat does same sex marriage pose to opposite sex marriage? Why the alarmism?

    3. Paul Benedict, Lanca says:

      Whether on a national level or on a state level, these United States require more than a constitutional amendment that "defines" marriage. An ever-increasing amount of policy affecting the day to day American life of average citizens been removed from our power by the increasingly radical role played by unelected, unrelenting and unrepentant judiciary at every level. Ridiculously, the justification the courts often claim is that the American electorate is too ignorant or too selfish to understand what is right. That of course is the excuse. Somewhere someone else's self interest is being fantastically supplied by the neglect of the will of the people.

      The recent decisions by the Massachusetts and California state courts ought to be the last straw for all Americans. Never before in the recorded history of the world has any pronouncement of any legislature, king, tyrant, or committee been so profoundly senseless. As Mr. one pundit proudly explained, “First, the decision holds that the California Constitution confers upon Californians a fundamental right to marry.“ Not even when the despot Caligula declared his horse a Roman Consul was he as devoid of judgment as these California Supremes. Other governments have been, perhaps, more cruel, but none so destitute of logic. Despite the greed of all humans to be right especially when they are wrong, confusing the act of love that is enshrined in matrimony with other unions changes nothing at all. Well, it does change our government from a faulty and callus organization of culprits into the laughing stock of the entire world, but, other than that, is assuages no guilt, and makes no wrong right.

      Despite the fact that most Americans do love their nation, we are well cognizant of its elected and unelected officials’ failings. Hence, we shrug it off. One more outrage, so what am I supposed to do? Nonetheless, the emotion all ought to feel is shock. Shock ought to arise in those citizens who are still conscious, not at some moral outrage perpetrated against the God of our fathers, for He is more than able to look out for His own. No, our blood ought rather to scream in our faces at the complete calamity that is now visited on our system of laws. When words cease to mean anything, then the system of laws, and the covenant between this government and the people, has been completely abrogated.

      A good nation's laws proceed from the good will of its people. However, any institution that stands between such good laws and such good will is tyrannical. Even when the judiciary far overstepped its place earlier in the 20th century, it escaped the claims of tyranny because it broke the bands that stood between the good will of the majority of the people and the good laws they willed to make. That is now far, far from the case. Because of the failure of the twentieth century courts to stay with the constitutional tradition, at the very least, we need to revise the constitution of these United States in such away as to hold these dark stolled embodiments of truth accountable to the people for their corruption and foolishness. How? Who knows? Perhaps something like this might work: "From now on no judge shall be appointed for a life term on any court. All judicial terms are subject to recall by a referendum of the people at any time. A judge removed by the will of 55% of the electorate if that judge fails to pay the cost of the referendum, he or she will be disbarred for life."

    4. Dennis - Hilo Hawaii says:

      I have often wondered why this issue is being predicated on strictly a benefit entitlement. Since most of this is based on either insurance or death matters etc..,,, why isn't this issue a matter of the Insurance Industry and so called privacy matters in hospitals and End of Life situations. Since the laws is forcing the industry to bend why not throw it all out and simply change the form(s) to address this rather than upseting the entire nation and world…Simplistic I suppose but I kinda like my marriage as it stands…

    5. Sam, United States says:

      If stopping discrimination and the hate crimes espoused by the author are activist, then I hope all judges are activists.

      And if your marriage is so insecure that someone else's happiness affects it, I suggest some serious counseling.

    6. Joe Ballard, Catawba says:

      Same sex marriage does not threaten my manhood, nor does make me insecure in my marriage as "Sam" suggests. Nor do I hate them, but I do despise their lifestyle as it is an abomination to God.

      But looking at it from a purely constitutional view, my rights are violated because I can no longer afford health insurance, because of the rights of those who live a promiscuous life w/o regard to the health and well being of the community and country.

      But as long as they are happy as Sam suggests,I guess that is ok.

      I guess we have the opportunity to pursue happiness w/o regard to consequences afflicted upon others.

    7. Dave McDuffie, Lagun says:

      From the perspective of a 60+ conservative, raised Catholic, decorated Vietnam vet, I have had the pleasure of knowing several gay(men)couples whom I found to be absolutely delightful, non-threatening and just a joy to be with. I have also had personal friends who were gay whom I loved a much as my straight friends. But for the life of me I can't understand why they would want to be "married" when a domestic partnership agreement accomplishes the same thing. As usual, be careful what you ask for, you just might get it! They will find marriage is not what they think it is, much to the delight of divorce attorneys who must trully be the pushers of this issue since they stand to gain so much. I will mention also, I told my gay friends I have yet to see anything to be proud of in a "gay pride parade"!

    8. Dennis Riddle, Torra says:

      If you want to look for promiscuity I suggest you look at heterosexual relations much more closely. Homosexuals who want to get married are no more likely to cheat on their spouses than are heterosexuals.

      If you are more worried about your health insurance costs, it is pretty clear to me that health insurance costs are rising for all of us, and that has more to do with an industry trying to improve its bottom line with shareholders than anything else. Cancer, heart disease and chronic illness cost the nation far more than AIDS, Hepatitus C and all other STDs combined (and only the two named are more common in the Homosexual community than the Heterosexual).

    9. San Deigo says:

      I agree with Dennis Riddle on the cost of insurance.

      I do not consider this a secular debate. This debate is a religious one. Marriage was set forth by God and not defining marriage as a union between one man and one woman would dragging something sacred through the mud. It would also force many religions to recognize and support something that is clearly against their doctrine.

    10. Nate says:

      People keep saying that prohibiting gay marriage is descrimination. There is a huge diference between descrimination and prohibiting action.

      There are people in this world that because of their religious beliefs strap weopons to their own body in order to kill others. Preventing them from doing this is not descrimintion nor do they have the civil right to comit such acts because of their beliefs.

      Prohibiting gay marriage is not descrimination because it does not prevent them from believing it. It is prohibiting an act that in itself is wrong.

      People also argue that being gay is a natural thing. It is not.

      When dogs mate it is because they are reacting to what they smell and they will have the same reaction wherever they encounter the same smell. A male dog posseses a portion of the same chemicals in it's body as does the female and if for some reason the male dog produces more of these chemicals than normal than other male dogs will react to this male dog in the same way they would a female.

      People on the other hand do not have sex because of a reaction to smell. They do it in great part because they want the pleasure. It is a choice not a reaction. A person may choose to go after such pleasure or refrain from it.

    11. Robert Kuenzig, Chin says:

      I too believe this is an issue of religious and not secular concern. Because a majority of people “believe” something is right or wrong does not make it just or fair. That’s why the U.S. Constitution has a Bill of Rights, in part to protect the minority stake holders in our society. Good thing California’s constitution is so easily amended; I guarantee Prop 8’s definition of marriage will one day fall by the wayside. Our Constitution also emphasizes a separation of church and state, whose lines have become alarmingly blurred in many instances in the last 8 years. Life, liberty and the Pursuit of Happiness should include the right to marry the person you love. What I am seeing is some fear mongering, and age old homophobia. How we can be so progressive in some areas of public policy and still have so far to go in other areas frustrates me to the point of subjecting you all to my opinion here. The doctrine of “Separate, but Equal” in the South, turned out to be anything but, and many there would still have separate bath rooms for people of color. Same goes for marriage vs. civil union, it is inherently unequal. By the way, you still get to explain why Susie or Johnny has two fathers or two mothers at home to your kids. But Susie and Johnny will live in a world made less just and tolerant of peoples’ differences by Prop 8. The truth is, we all share many of the same dreams, hopes and needs regardless of how we look or who we love. For the record, I’m 49, white, male, Republican, hetero, and happily married 23 years to one wife only.

    12. Richard in San Diego says:

      The issue for me goes a little deeper than the revision of the definition of the term marriage. Which for thousands upon thousands of years has been the union of man and woman. The issue is that of the minority forcing a definition change upon the majority. If a minority group of people can change the basic definitions of society, whats next, can they then change the basic definition of life, and determine that euthanasia (of course for people of opposite beliefs) is beneficial to society?

    Comments are subject to approval and moderation. We remind everyone that The Heritage Foundation promotes a civil society where ideas and debate flourish. Please be respectful of each other and the subjects of any criticism. While we may not always agree on policy, we should all agree that being appropriately informed is everyone's intention visiting this site. Profanity, lewdness, personal attacks, and other forms of incivility will not be tolerated. Please keep your thoughts brief and avoid ALL CAPS. While we respect your first amendment rights, we are obligated to our readers to maintain these standards. Thanks for joining the conversation.

    Big Government Is NOT the Answer

    Your tax dollars are being spent on programs that we really don't need.

    I Agree I Disagree ×

    Get Heritage In Your Inbox — FREE!

    Heritage Foundation e-mails keep you updated on the ongoing policy battles in Washington and around the country.