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Published: May 16, 2008

“Legal jujitsu”

Dissenters say California Supreme Court over-stepped its powers by invalidating people’s will on same-sex marriage

“I cannot join the majority’s holding that the California Constitution gives same-sex couples a right to marry. In reaching this decision, I believe, the majority violates the separation of powers, and thereby commits profound error.”

So wrote California Supreme Court Associate Justice Marvin Baxter in a dissenting opinion in yesterday’s 4-3 decision declaring laws defining marriage as only a union of a man and a woman violate the California constitution. Joining Baxter in dissent was Associate Justice Ming Chin.

In a separate dissenting opinion, Associate Justice Carol Corrigan said that, while she thinks “Californians should allow our gay and lesbian neighbors to call their unions marriages,” any new understanding of marriage “should develop among the people of our state and find its expression at the ballot box.”

Chief Justice Ronald M. George wrote the opinion for the majority. The lengthy opinion – slightly more than 120 pages -- essentially held that the state had no compelling interest to justify denying same-sex couples the right to marry. Proposition 22, the voter-approved measure that declared valid only heterosexual marriages, was unconstitutional because it violated the state constitution’s guarantee that all citizens are entitled to equal protection under the law.

In his dissent, Baxter wrote that he agreed with the court’s majority that “‘from the beginning of California statehood, the legal institution of civil marriage has been understood to refer to a relationship between a man and a woman.’” He noted he also agreed that Proposition 22, the “initiative statute, adopted by popular vote of 61.4 percent and thus immune from unilateral repeal by the Legislature,” invalidates both same-sex marriages “consummated elsewhere” and those “contracted under that name in the state.”

Baxter, however, criticized the majority for relying “heavily on the Legislature’s adoption of progressive civil rights protections for gays and lesbians to find a constitutional right to same-sex marriage. In effect, the majority gives the Legislature indirectly power that body does not directly possess to amend the Constitution and repeal an initiative statute.”

Noting that same-sex marriage advocates “have had success in the marketplace of ideas, gaining attention and public support,” Baxter said “the ordinary democratic process” might lead to legal recognition of same-sex marriage. But, he continued, “a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves.” Despite the “strong weight of state and federal law and authority,” the majority, said Baxter, “invents a new constitutional right, immune from the ordinary process of legislative consideration.”

According to Baxter, the majority opinion suggests that, while the legislature may not unilaterally repeal an initiative statute, such as Proposition 22, it may enact other statutes that, in providing “substantial rights to gays and lesbians,” establish a “California right of equal treatment” and so invalidate the initiative statute.

“I cannot join this exercise in legal jujitsu, by which the Legislature’s own weight is used against it to create a constitutional right from whole cloth, defeat the People’s will, and invalidate a statue otherwise immune from legislative interference,” wrote Baxter.

Baxter argued that the court’s majority ran afoul of the state constitution’s separation of powers clause, which says that the legislative, executive, or judicial branches of government may not exercise each other’s powers. Baxter cited as well “the People’s general right, directly or through their chosen legislators, to decide fundamental issues of public policy for themselves.”

“The [court] majority has violated these principles,” wrote Baxter. “It simply does not have the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice.”

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