The Minority Report

Carl Olson links to the report of a dissenting justice in California:

Only one other American state recognizes the right the majority announces today.  So far, Congress, and virtually every court to consider the issue, has rejected it.  Nothing in our Constitution, express or implicit, compels the majority’s startling conclusion that the age-old understanding of marriage — an understanding recently confirmed by an initiative law — is no longer valid.  California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow.  If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means.  The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority.

The majority’s mode of analysis is particularly troubling.  The majority relies 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.  I cannot subscribe to the majority’s reasoning, or to its result. …

The question presented by this case is simple and stark.  It comes down to this:  Even though California’s progressive laws, recently adopted through the democratic process, have pioneered the rights of same-sex partners to enter legal unions with all the substantive benefits of opposite-sex legal unions, do those laws nonetheless violate the California Constitution because at present, in deference to long and universal tradition, by a convincing popular vote, and in accord with express national policy (see fns. 1, 2, ante), they reserve the label “marriage” for opposite-sex legal unions?   I must conclude that the answer is no.
The People, directly or through their elected representatives, have every right to adopt laws abrogating the historic understanding that civil marriage is between a man and a woman.  The rapid growth in California of statutory protections for the rights of gays and lesbians, as individuals, as parents, and as committed partners, suggests a quickening evolution of community attitudes on these issues.  Recent years have seen the development of an intense debate about same-sex marriage.  Advocates of this cause have had real success in the marketplace of ideas, gaining attention and considerable public support.  Left to its own devices, the ordinary democratic process might well produce, ere long, a consensus among most Californians that the term “marriage” should, in civil parlance, include the legal unions of same-sex partners.

But 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. Undeterred by the strong weight of state and federal law and authority,  the majority invents a new constitutional right, immune from the ordinary process of legislative consideration.  The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will.