Activist Judges Legislate from the Bench... again

California is, again, on the wrong side of history and humanity. Today marks the CA Supreme Court’s ruling on the divisive Proposition 8 (P8), which amended the state Constitution, defining marriage between one man and one woman. With a 6-1 decision, conservatives can claim victory in the ongoing battle for marriage equality and civil rights. The irony of this victory is that has come on the backs of the very same people so derided as “activists” because those people did not give conservatives what they wanted in 2008.

As I read the opinion, it quickly begins to bleed absurdity. On page 7 it suggests that P8 does not impinge on the substantive rights of same-sex couples, those of equal protection, due process and privacy. The effect of P8 is limited to carving out a narrow designation of the term “marriage.” The court recognizes the significance of that designation to the petitioners but the amendment was passed by voters befitting the initiative process (defined in Article 2 Section 8 of the CA Constitution); therefore, it is compelled to uphold the amendment.

In short, the court has said the following: 1) the passing of P8 conformed to the standards of the CA Constitution, 2) the court is bound to decide based on the document which now includes the language of P8, and 3) the amendment only serves to qualify a narrow definition of “marriage” and cannot impinge on the “governmental plan or framework” established by the Constitution, those of equal protection, privacy, et al. Same-sex couples are equal to “married” couples by the state Constitution, but they are not the same. In it’s decision the CA Supreme Court has thus defined same-sex unions as separate but equal.

The opinion goes on to hide behind the initiative process, pointing out that other states limit the initiative power. It does not nullify those same-sex marriages that have already occurred nor does it give any real handling of same-sex marriages from other states, i.e. full faith and credit. The decision, in my humble opinion, is pandering and cowardly. It follows the logic of segregation laws in the 1920s and any miscegenation law that was struck down by Loving v. Virginia. It passes on the dual opportunities to join the social progress of states that have recently recognized same-sex marriage and provide the federal government with further incentive to repeal DoMA, end military segregation and promote Article IV of the U.S. Constitution.

When the Marriage Cases opinion was published in 2008, the decision that briefly legalized same-sex marriage, conservative critics called the CA Supreme Court “activist judges (specifically the four)” who “legislate from the bench.” I defended them then, not because I was in favor of their ruling, but because they were simply doing their jobs. I hope the irony of my title isn’t lost. I still think the judges were doing their jobs. They referred to the highest document they could in the case of Strauss v. Horton, but I do think they got it wrong. They are not “activists.” They simply erred to the detriment of equality, which I believe will soon enough be rectified. They pandered to the obfuscation that P8 is about the right of people to govern themselves and not an denial of civil rights. I have never been a fan of the initiative process but I will participate in it to repeal P8, especially now that opinions seem to be shifting towards progress. I still find it very sad that civil rights can be subject to a majority vote, but I can only hope that this time “We, the people” is a more inclusive club.