Squaring the Culture

"...and I will make justice the plumb line, and righteousness the level;
then hail will sweep away the refuge of lies,
and the waters will overflow the secret place."
Isaiah 28:17

05/27/2009 (7:23 pm)

California Marriage is Still Marriage — For Now

The California Supreme Court announced its decision yesterday in Strauss v Horton, the case challenging the amendment to the state’s Constitution that explicitly defines marriage as between a man and a woman, passed this fall as Proposition 8. They declared the proposition constitutional, and have put a stop to the state of California issuing marriage licenses to same-sex couples for the time being. Meanwhile, some 11,000 same-sex couples who have been married since the same Supreme Court declared unconstitutional the statute defining marriage as between a man and a woman will be recognized by the state as legitimate, legal couples.

Take a minute with that. The state supreme court declared a statute unconstitutional, then declared more or less the same language proper when submitted as an amendment to the Constitution.

That’s not so surprising, when stated that way. What’s interesting is the reason they did it. In effect, they declared that gay marriage is an essential right, but calling it marriage is not part of that essential right. They claim that all the benefits of marriage have been obtained for gays already through other means, so gays have the same rights as straights. But, they said, there’s no Constitutional right to have what they’re doing called marriage, so Prop 8 passes muster. In effect, what they’ve just done is set up “separate but equal” for gay couples.

This is insane, and I’m guessing it will not survive.

On the same day, a challenge to Prop 8 was filed by David Boies and Theodore Olson. These are the two attorneys who argued Bush v Gore before the Supreme Court, Boies for the Democrats, Olson for the Republicans. Olson is a conservative stalwart, and I’m very disappointed that he’s participating in this case.

The challenge is apparently an Equal Protection claim, and given the fact that the California Supreme Court has just created the equivalent of what was going on in education before Brown v Board of Education in 1954, it may win. Volokh has details of the complaint.

This is all insane. There is no such thing as gay marriage. Marriage, by definition and under general agreement when just about all of these state statutes passed, means a union between a man and a woman. Such unions have been protected, encouraged, subsidized, and honored throughout human history primarily because they perpetuate our species.

There is no violation of any Constitution in any of the state laws concerning marriage; gays are permitted to marry just like anybody else. A gay man can marry any woman he chooses, if she consents, and the law does not ask him whether he’s gay or not, so there’s no discrimination. A gay woman can marry any man she likes, if he consents, and the law doesn’t care whether she’s gay or not, so there’s no discrimination. The fact that they don’t want to marry cross-gender does not mean a thing, legally, same as the fact that I don’t want to own a handgun does not mean the 2nd amendment does not apply to me. They’re protected equally under the law.

What’s going on is the same thing that’s been going on in America for about 50 years. Social progressives are forcing the nation to change in directions it does not want to change, by way of judicial tyranny. They can’t win in the legislature, so they bypass constitutionally proper procedures, pack the court system with activist judges who couldn’t care less what the law says, and force their agenda by creating rights where none existed before. This is why that now-infamous video of President Obama’s recent nominee to the Supreme Court, Sonia Sotomayer, is so important — the one in which she says “Appellate Courts make policy.” She immediately chuckles, backpedals, and says all the right words to mollify the people watching the tape, and the crowd laughs, but the cat was out of the bag; she knew the requisite words, but she also knew how progressives like herself use the courts, and so did her audience. Make no mistake, this is tyranny, and they know perfectly well what they’re doing.

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