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Friday, July 11, 2008
Did the California Supreme Court act properly in overturning the gay marriage bill?
Andrea Cornell Sarvady, a left-leaning columnist, writes the commentary this week and Shaunti Feldhahn, a right-leaning columnist, responds.
Rebuttal
Andy’s last paragraph proves the point of those who charge the California Supreme Court with one of the most egregious, arrogant and far-reaching judicial actions to date. It is not up to a court to determine that “existing rights accorded to gay couples aren’t enough.” It is not in a judge’s job description to ensure gay couples “equal respect and protection.” Chief executives and legislators can fight for their beliefs and to change society. But under America’s separation of powers doctrine, the whole point of a judicial branch is for judges to put aside personal opinions and determine whether laws are constitutional. Period.
Of course Supreme Court Justice Scalia overturns acts of Congress: If the law is unconstitutional, that’s his job. Otherwise, it doesn’t matter how much he personally disagrees with it. If it was passed by our elected representatives and doesn’t conflict with the Constitution, he must affirm it.
I believe the most commendable judge on the California Supreme Court is Justice Corrigan. One of the minority who disagreed with the court’s action, her legal opinion stated, “In my view, Californians should allow our gay and lesbian neighbors to call their unions marriage…[However] a majority of Californians hold a different view, and have explicitly said so by their vote.” She points out that, “This court can overrule a vote of the people only if the Constitution compels us to do so. Here, the Constitution does not.”
According to the Family Research Council’s Peter Sprigg, another serious action by the California court has been overlooked. It was the first court ever to use the “strict scrutiny” standard for sexual orientation — essentially creating a legal tsunami by giving sexual orientation the same strict protection as race, religion or gender. Institutions that agree with the majority of Californians and morally disagree with gay marriage can now be legally punished. For example, Christian, Jewish or Muslim properties refusing to allow gays to be married there could lose their nonprofit status.
Commendably, gay marriage supporters usually argue “live and let live” and don’t want legalization of their unions to hurt anyone else. Unfortunately, by acting in such a judicially indefensible way, the California Supreme Court has almost ensured the opposite.
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Commentary
By Andrea Cornell Sarvady
Did you hear the news? Out there on the Left Coast, a bunch of activist judges decided to legislate from the bench, ignoring the will of the people by granting homosexuals the right to marry.
That’s the Golden State for you, familiar with looking strange to the rest of the country. In 1948, California was the first state to strike down a statute prohibiting intermarriage involving white people (Perez vs. Sharpe). The court disagreed with those who claimed the law was necessary to keep “the Caucasian race from being contaminated by races whose members are by nature physically and mentally inferior to Caucasians.” I don’t see anyone lining up to dispute the California court’s wisdom here — are you aware it took 19 years for federal law to follow suit?
So maybe California’s recent trail-blazing deserves closer scrutiny. “Activist judges legislating from the bench?” Nothing more than a phrase employed when the right doesn’t like the result of a legal decision; Scalia and Thomas overturn acts of Congress and they’re just “doing their job.” Furthermore, three of the four in the majority opinion were appointed by Republicans, and this same court nullified thousands of marriages performed by San Francisco Mayor Gavin Newsome in 2004.
“Ignoring the will of the people?” When California’s Proposition 22 passed back in 2000, a majority voted for a change in family law code specifying that marriage is between a man and a woman. Yet California voters increasingly show a change of heart. By 2005, the 60 percent in favor of the proposition eroded to half, and most polls now show a majority disapprove of such clarifying language.
Those who view homosexuality as a choice, a mortal sin, an inferior lifestyle that contaminates our society—well, no amount of argument will sway you towards acceptance. Yet for others, California Supreme Court decision S147999 might make for some interesting summer reading. Within its pages, the neither activist nor impulsive California court determines that existing rights accorded gay couples aren’t enough, that only through marriage can they enjoy equal respect and protection under the state constitution. If that feels like overkill to you, if it feels “too soon,” I only ask this: is second-class status good enough for your relationship?