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California schemin'?
State's court, governor act without reason 
in same-sex marriage ruling

By JAMES WIGDERSON

May 22, 2008

 
The California State Supreme Court shocked the nation when it decided to overturn California law and legalize same-sex marriage. In California, not only has the law traditionally held that marriage is only to be between a man and a woman, but the voters reaffirmed that understanding with a ballot initiative that passed with 60 percent of the vote.

Other than the ballot initiative, nothing had changed in California law to prompt such a ruling. Five justices had previously ruled San Francisco’s attempt to issue marriage licenses invalid, waiting for the cases to work their way through the system before ruling on the constitutionality of the issue.

In an interview with the Los Angeles Times, Chief Justice Ronald George gave a lengthy explanation of how he came to his decision to be the surprise vote for a 4-3 majority in favor of legalized same-sex marriage. When asked whether Californians would accept his ruling, he replied, "I really don’t know."

It is unlikely Californians will accept the court’s ruling. Already there is a movement to amend the state constitution via the referendum process. The amendment is likely to be on this November’s ballot.

It makes George’s decision all the more puzzling. George told the Los Angeles Times the reason he originally voted to void the marriage licenses issued by San Francisco is because he didn’t want the couples involved to be "in limbo" while the court considered the constitutional questions. Yet surely they’re in limbo while they await the election results this fall.

California’s Republican Gov. Arnold Schwarzenegger has taken a strange position in all of this. When the state legislature (controlled by Democrats) sent him bills to legalize homosexual marriage, Schwarzenegger vetoed them. Now that the court has ruled in favor of legalized same-sex marriages, Schwarzenegger supported the court ruling and has promised to fight any proposed constitutional amendment to overturn the court’s ruling.

What Schwarzenegger seems to be advocating is rule by judges, oligarchy, and not rule by democratic principles.

So we have a state supreme court that issued a ruling that has no precedent and no basis in the law except the whim of four members of the court. It’s counter to the will of the public, and is likely to be overturned in due course. And in support of this temporary usurpation of power by judicial activism, the Republican governor.

Caught in the middle of this political game are the very people whose rights Justice George and Governor Schwarzenegger claim to be defending.

Fortunately in Wisconsin we avoided this chaos. In 2006, voters chose to amend the state constitution to declare marriage is for one man and one woman.

We were told at the time that this was unnecessary, that marriage is already one man and one woman under Wisconsin law. Of course, there were lawsuits already in the works to overturn that understanding of the law.

By amending the constitution, Wisconsin voters removed the possibility the courts would be equally activist here in expanding the definition of marriage. We do not have to fear that Wisconsin will be forced to recognize same-sex marriages by other states as well.

With the election of Justice Michael Gableman in April, the court is now firmly in the hands of justices who understand the proper roles of the courts and the legislature. Any attempt to overturn Wisconsin’s law on the definition of marriage will have an impossibly high bar to jump.

For all the talk of how awful the last two Wisconsin Supreme Court races were, they were not nearly as corrosive to the public confidence in the courts and our political system as the judicial activism in California. The political left and the so-called "good government" types can complain about how messy electing judges can be, but removing government from the hands of the people to the whims of four people in black robes can only undermine the public faith in our government.

So not only does our cheese taste better than California’s, our courts work better than theirs, too.

(James Wigderson is a blogger publishing at http://wigdersonlibrarypub.blogspot.com and a Waukesha resident. His column runs Thursdays in The Freeman.)

 
 


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