Today, the California Supreme Court annulled the roughly 4,000 same-sex marriages that had been granted in San Francisco, finding the city acted illegally in granting marriage licenses earlier this year in violation of state law.
I am sure that all those people who praised the method of letting the courts be the ultimate legislators will be vocal in their praise of this action.
Right?
Just saw the news, and was wondering if someone was going to start a thread about this. I started more than my shore of SSM threads earlier this year…
Was there really any doubt about this decision? Seemed like a slam dunk case to me. The court was not considering the broader issue of whether the state constitution requires that gays have the right to marry, only the narrow issue of whether or not Newsom had the authority to issue marriage licenses to same sex partners when he did.
Sure.
After all, the Supremes in Mass(not en masse) were well supported for their stance, so it goes to figure that the California Supremes who were citing Holland/Dozier in the landmark Stop, In The Name Of Love case will also be universally beloved for their wisdom and benevolence.
wow. what does this mean for the couples? Do they lose any of their rights that came along with being married? is california going to vote on a state constitutional amendment like so many other states?
precisely what John Mace said. the law seems to be pretty clear on this particular topic, and i can’t really imagine them having ruled otherwise, since the actual laws aren’t being contested here.
who is letting the courts be the ultimate legislators? they’re deciding issues based on california law, which is what they’re supposed to do. if the laws prohibiting same-sex marriage are contrary to the constitution of california, should the justices simply say “hey california, we’re gonna let this go until the legislature decides to change the laws or the constitution”?
Don’t usually frequent GD but saw this on the front page and, since I’m undoubtedly one of the people Bricker is refering to as a “let the courts decide” person (even though that’s a gross oversimplification of my thoughts on the matter), I’ll check in long enough to say that I agree that the court made the correct decision from a legal standpoint in this case despite my utter opposition to the result. I had held out some tiny measure of hope that the court would find some way to allow the marriages to stand (I know at least some states allow marriages that are otherwise void because of a procedural defect to stand rather than punish the couple) but the suits attacking California’s marriage ban are still ongoing and I am confident that the court, which is properly charged with interpreting the state constitution and striking down those laws in conflict with it, will strike down the ban and retroactively reinstate the marriages that have been voided today.
I only hope it happens in time for Del Martin and Phylis Lyon, both in their 80s and having been together for more than half a century, to be legally married before they die.
They never had any of those “rights”. The state never agreed to register the licenses. I doubt if any of the couples married really thought it would hold up. I saw lots of them interviewed at the time, and they all seemed to have a healthy skepticism.
Probably, but I’m not aware of how far along in the process we are. Prop 22, which banned SSM, passed with a strong majority only a few years ago. Of course things might change. MA hasn’t sunk into the ocean yet ( 
), and people might become more comfortable with the concept in the not too distant future.
You’re either being mischievous or disingenous, Rick. 
First, I’m not aware of any threads where it was argued that the courts should be the ultimate legislators. Can you point me to posts by anyone who suggested, for example, that the people of Massachusetts couldn’t exercise their sovereign power to amend the state constitution and overturn the court’s decision? The ultimate legislator is the people themselves, and they have the power to overturn the decision if they wish.
Second, accepting that the courts have the power to interpret the constitution, whether state or federal, does not mean that one must always agree with the courts’ decision. Those are two entirely separate propositions. One can agree with the jurisdiction of the court to decide an issue under the constitution, and yet vigourously disagree with their exercise of their power in a particular case.
Third, yes, I would support the court’s decision in this case, if I’ve correctly understood it. In any system of multiple legal authorities, such as federal governments, state governments, county governments, and municipal governments, there has to be a mechanism to determine hierarchies of law and to resolve conflicts between different governments of limited powers. A municipality cannot ignore a state law, any more than a state government can ignore a constitutional provision. If a muncipality believes that a state law is unconstitutional, the courts are always open for the municipality to challenge the law. That’s what the rule of law is about, not everyone deciding for themselves which laws to obey, which seems to me to be what the mayor of SF did here.
Finally, as I understand it, this decision doesn’t touch on the basic issue of whether the state law in question conflicts with the state constitution. I’m curious to see how the California courts determine that issue.
All IMHO, of course. 
I appreciate your agreement – and I realize that my shorthand phrase was, in fact, an oversimplification of your stance on a complex issue.
While the CA Supremes have yet to address the issue of whther the California constitution requires same-sex marriage, my point above hopefully has not lost its meaning: if you (not you, Otto; ‘you,’ pronoun-in-the-indefinite-sense) said that the Massachusetts Supreme Court was the proper authority to decide the issue in MA, you are also presumably in favor of this process (although not necesssarily happy with the result) in CA.
I’m wondering, though, if this gives some folks an understanding of how reliance on judicial “legislation” can lead to undesirable results, with fewer options available to the populave to correct those results.
Yawn, nothing to see here. The court’s ruling is within the laws of California. Since they were considering only the legality of the marriage certificates, there was no other outcome possible.
Now when this comes down to the case to deem if prop 22’s wording is unconstitutional, that will be something to watch. Any appeals will go to federal court, and chances are, it will end up in the laps of the SCoUS. Bricker’s fears manifested.
If you insist, I can certainly find posts that offered that sentiment – the discussion of whether the courts or the legislature should be the source of decisions on same-sex marriage had several participants that seemed to suggest exactly that, while I and several others pointed out that this was a denial of the basic principles of self-governance.
Lochner v. New york and Dred Scott were quoted. This doesn’t ring bells?
I don’t get it. Are you saying that if one feels that a law is unconstitutional that a person is incorrect to challenge it in court? Or should we wait for the whims of the majority to change it? Should blacks have waited for a majority in the south to come around to get equal treatment under the law?
Who else besides the courts should decide if a law is constitutional?
And remind how there are fewer options now? Did the California ruling find that the California constition or the California code could no longer be amended like normal in order to ban or allow gay marriage?
I don’t think so, unless the CA courts find a federal constitutional right to same-sex marriage… unlikely in light of the dicta in Lawrence.
i think asking whether the california constitution “requires” same-sex marriage is an unnecessarily oversimplified way to state the issues.
i understand your point, and i can see the validity of it, but you’re carrying it too far, and this particular case is largely irrelevant to it.
now, for the sake of debate, do you dispute that whether or not california legislators have the right to discriminate between couples of the same sex and couples of opposite sexes is a california constitutional issue?
No. I’m saying the courts should not arrogate to themselves the power to make sweeping changes to the law under the ambit of “substantive due process.” If a court finds that there is a state constitutional right to same-sex marriage, when there is nothing remotely suggesting that outcome in the actual language of the document, and when the right is not “deeply rooted in American history and tradition” or “implicit in the concept of ordered liberty” then the court has exceeded its proper role of interpreting the existing law. It’s making new law out of whole cloth.
It is, of course, for the people of a particular state to decide to accept or change such a decision, and if the process of change is difficult or takes a long time, that, too, is within the power of the people to change.
Now, as for blacks in the south – the Fourteenth Amendment was passed precisely to solve that problem. Asking for judicial relief for their situation under the Fourteenth Amendment was NOT, for them, asking a court to find a new right out of nothing… it was was asking a court to enforce an existing right found within the four corners of the constitution.
The Fourteenth Amendment was NOT passed to solve the problem of women not being able to vote. So, correctly, the problem was resolved legislatively, with the Nineteenth Amendment… not judicially, with a finding that the Fourteenth Amendment was meant to apply to women.
Of course not – nor should it. That option properly remains with the people of California.
Not their courts.
How so? That’s precisely the determination made by the Massachusetts Supreme Court - that the Massachusetts Constitution requires the state to recognize same-sex marriage.
It is a California constitutional issue, and ultimately rests in the hands of the California Supreme Court.
But here’s a hypothetical: the California Constitution, Art. 1, Sec 17 provides: “Cruel or unusual punishment may not be inflicted or
excessive fines imposed.”
An arsonist, sentenced to three years in prison, alleges that any prison time at all, for any crime, is a punishment so severe that it violates the prohibition against cruel and unusual punishment in the state constitution.
If the California Supreme Court were to agree with this argument, they would be overstepping their prudent bounds, even if acting technically within their power.
Yes?
So you’re not going to answer the question Neurotik asked?
So I’ll ask again, how are there fewer legislative options now than before?
This is hardly a surprising development. The S.F. weddings were always characterized as an act of civil disobedience, which is, by definition, doing something illegal, if not immoral. Since the CASJC ruled narrowly on the laws as written, what more can be said?
It now lies with the people of CA to sue the govt. over the unconstitutionality of the laws prohibiting same-sex marriage. That’s exactly how things played out here in MA.
The ultimate option with legislators is voting them out of office and replacing them with people more amenable to your will. That option is non-existent with federal judges, and - depending on the state - limited or non-existent there as well.
So Bricker, should I bring up every goofy decision by a legislature and ask you to vocally praise it as a shining example of the democratic process?