Note, this is an analysis of the Majority opinion, I take no particular position on gay marriage.

My interest is in the larger issue of judicial activism. 

Via Stop the ACLU

I’m listening as I post to Matt Staver of Liberty Counsel speaking to my local radio station (540 WFLA) about breaking news on a California same-sex marriage case. Staver is an attorney who argued the case on the side of upholding a same-sex marriage ban.

According to news posted just minutes ago:

A state appeals court ruled Thursday that California’s marriage laws do not violate the constitutional rights of gays and lesbians, a critical defeat to a movement hungry for a win after high courts in New York and Washington upheld similar bans in those states.

The complete ruling is a whopping 128 pages long, and can be seen here.  I won’t post it all, but it’s summary is interesting.

The majority opinion, written by Justice McGuiness is an amazing one, not solely for the nature of the ruling itself, but for the stance it takes on judicial activism.

He slaps the dissenting Justice right in the first paragraph:

Our dissenting colleague advances theories and arguments not made by the parties or relied on by the trial court and concludes a constitutionally protected privacy interest compels expanding the definition of marriage to include same sex couples.

He acknowledges the severity of the issue nationally and defines the nature of the debate:

Obviously, the question is one of great significance, and it requires us to venture into the storm of a fierce national debate. Both sides believe passionately in their positions.  Both sides believe passionately in their positions. One side argues the time has come for lesbian and gay relationships to enjoy full social equality, and it is fundamentally unfair for the state to continue to reserve marriage as an institution for heterosexual couples only. The other side stresses the need for judicial restraint and the importance of preserving the traditional understanding of marriage—which is very important to many Californians, who fear such a fundamental change will destroy or seriously weaken the institution at the heart of family life.

But this is very enlightening.  The Court takes note of what it’s role is in this context(emphasis added):

While we have considered all arguments raised on both sides of the issue, our task as an appellate court is not to decide who has the most compelling vision of what marriage is, or what it should be. “[T]he judiciary is not in the business of preferring, much less anointing, one value as more valid than another. . . .” (Lewis v. Harris (2005) 378 N.J. Super. 168, 200 [875 A.2d 259] (conc. opn. of Parrillo, J.A.D.).) We are called upon to decide only whether the statutory definition of marriage as the union of a man and a woman—which has existed, explicitly or implicitly, since the founding of our state—is unconstitutional because it does not permit gays and lesbians to marry persons of their choice.

Wow.  A clear rejection of the more common acts of judicial activism.

So the elements boil down like this(formatting added):

1. All can agree that California has not deprived its gay and lesbian citizens of a right they previously enjoyed; same-sex couples have never before had the right to enter a civil marriage.
2. It is also beyond dispute that our society has historically understood “marriage” to refer to the union of a man and a woman.
3. These facts do not mean the opposite-sex nature of marriage can never change, or should never change, but they do limit our ability as a court to effect such change.
4. The respondents in these appeals are asking this court to recognize a new right.
5. Courts simply do not have the authority to create new rights, especially when doing so involves changing the definition of so fundamental an institution as marriage. “The role of the judiciary is not to rewrite legislation to satisfy the court’s, rather than the Legislature’s, sense of balance and order. Judges are not ‘ “knight[s]-errant, roaming at will in pursuit of [their] own ideal of beauty or of goodness.” ’ [Citation.]” (People v. Carter (1997) 58 Cal.App.4th 128, 134.) In other words, judges are not free to rewrite statutes to say what they would like, or what they believe to be better social policy.

There again, a clear rejection of the activism seen more and more.  Coming from California, this is surprising.

Then he again points out the divide of the court (emphasis added):

Because we have a fundamentally different view of the appellate judicial function, at least in relation to these cases, we part ways with our dissenting colleague. The dissent delivers what is essentially an impassioned policy lecture on why marriage should be extended to same-sex couples. Lacking controlling precedent, it misconstrues case law and mischaracterizes the parties’ claims and our analysis to reach this result. But the court’s role is not to define social policy; it is only to decide legal issues based on precedent and the appellate record. The six cases before us ultimately distill to the question of who gets to define marriage in our democratic society. We believe this power rests in the people and their elected representatives, and courts may not appropriate to themselves the power to change the definition of such a basic social institution. Our dissenting colleague’s views, while well intentioned, disregard this delicate balance. Moreover, his unfortunate rhetoric suggesting our opinion is an exercise in discrimination rather than a legitimate attempt to follow the law (dis. opn., post, at pp. 50-51) does nothing to advance the serious subject matter of these appeals.

Again, WOW! 

We conclude California’s historical definition of marriage does not deprive individuals of a vested fundamental right or discriminate against a suspect class, and thus we analyze the marriage statutes to determine whether the opposite-sex requirement is rationally related to a legitimate government interest. According the Legislature the extreme deference that rational basis review requires, we conclude the marriage statutes are constitutional. The time may come when California chooses to expand the definition of marriage to encompass same-sex unions. That change must come from democratic processes, however, not by judicial fiat.

Well thank you.  Finally a judge that refuses to become a law unto himself.

In concurrence, Justice Parnelli writes(emphasis added):

With complete respect to my colleagues, I join in the opinion of Justice McGuiness and write separately only to address what are more philosophical questions presented by the challenging legal issues before us.

In my view, this case is about two things: Who gets to define what marriage is, and an uncomfortable intersection of law, culture, and religion. The court must confine itself to the former question; it is not in a position to resolve the latter issue, though it must be conscious of the dynamic.

I also write separately to identify a major difficulty with all attempts at reasoned dialog about this subject. There is a legitimate and meaningful disagreement in this country, and in many places around the world today, about what marriage is and should be.

That’s an understatement. 

Over the last 30 years we have seen a gradual reconfiguration of family; emerging models of family exist alongside traditional models. We have also witnessed an expansion of personal freedom to express who one really is that is desirable if each person is to become who he or she was created to be. The roots of the disagreement over what marriage should be necessarily intertwine cultural, societal, and religious ideas. There is a great tendency, out of zeal to eliminate genuine inequities, to be swayed emotionally and to overreach in applying legal principles.

As is that. 

My colleague has done so in his dissent. Justice Kline writes passionately of the “profound nature of the liberty interest” at stake (dis. opn., post at p. 47) and of “autonomy privacy,” (dis. opn., post at pp. 9, 22) but does not cite a single case where the asserted liberty or privacy interest has been identified as he would have us recognize. Most of the cases he relies upon are cases where the rights at issue have been discussed in the context of marriage as it has been understood historically, or in situations that criminalize acts of sexual intimacy. In the end the dissent advocates, from cases that do not lead inexorably to such a result, the existence of a fundamental right to participate in an institution that as historically defined excludes such individuals.

Interesting.

The forms marriages can take have changed over the centuries, and will continue to change if history is a reliable teacher. It seems rational that allowing more people to participate in the institution of marriage would only strengthen that institution, not diminish it. Loving covenant relationships encourage stability and mirror the Divine human relationship of some religious traditions. Seemingly, it would be wise to encourage such formal commitment, especially where children and families are involved.

But. 

It is the legitimate business of the Legislature to attempt to close the distance between the parallel institutions (marriage and same-sex committed domestic partnerships) as they develop, and to address such concerns. The “public square” and the Legislature are the appropriate places within a democracy for the debate to fully develop and the evidence to be collected. When and if the Legislature, or the People through the initiative process, provide civil marriage to same-sex couples, we will be called upon to decide legal questions that emerge.

Exactly.  Leave laws to the legislature. 

Even though equity may favor recognizing such unions equally, it does not follow that courts are free to redefine how marriage has been historically understood under the guise of discovering a fundamental right to marry a person of the same sex. We would essentially have to conclude, as the dissent implies, that an undetected right to marry a member of the same sex has always existed under our state constitution.

And that nails the nature of a lot of judicial activism and bench legislation in our country in issues of all sorts, not just this one:  The desire to "discover" or invent new rights.

There is nothing in law or logic that compels such a conclusion. Of course, the arguments for and against the ascertainment of a “fundamental right” become circular when we start from a definition of marriage that presupposes and requires members of the opposite sex and moves inexorably to excluding same-sex couples from participating by definition. Yet, a common understanding and meaning of the word “marriage,” or the term “to marry,” is required before the word, and the institution, can be discussed intelligently. Or we must admit we are redefining the historical understanding to accommodate this discussion and the cultural developments that precipitated it. Words do matter and there is much in favor of using terms that differentiate to describe biologically different models.

This part is very interesting and echoes my personal opinion and arguments about marriage:

A danger revealed through this debate is that the state has necessarily involved itself in a venture that combines civic process with religious symbolism. (Dis. opn., post at pp. 24-27.) When referring to a civil marriage, we speak of the “sacred” institution, the “spiritual meaning” and the “reverence” accorded to married status, yet avow that the state must remain separated from furthering any particular religious ideation and tradition, and that the institution we deal with is civil in nature.

Exactly.  That is why I advocate state sanctioned civil unions, and not marriages for hetero and homosexual couples.  Let the churches recognize marriages according to their dogma, and let the states identify the unions only for legal protections. 

The often unspoken, but underlying, assumption about the current definition of marriage is that it comes from religious tradition. (Dis. opn., post, at p. 25.) Similarly, the opposition to same-sex partnerships comes from biblical language and religious doctrine. This reality is nothing to avoid, and we must acknowledge it if we are to proceed honestly.

I love this line: 

Humanity did not simply arrive at a definition of marriage devoid of religious concepts informing and shaping that definition, or indeed, us as a people. If we conclude ultimately that marriage is an institution which cannot be separated from its religious history, we must examine whether in an increasingly pluralistic and secular society it can endure as a civic institution.5 (Miller, Letting Go of a National Religion: Why the State Should Relinquish All Control Over Marriage (2005) 38 Loy. L.A. L. Rev. 2185.) But it seems to me we cannot have it both ways. We say the state must not promote a particular religious viewpoint or establish religion, and then we watch it simultaneously enmesh itself with religious tradition, terminology, and teaching.

Exactly. 

As the dissent observes, the amici curiae briefs in this case report that some religious denominations that wish to solemnize marriages for same-sex couples are prevented from doing so by the current law; however, other amici curiae argue on behalf of religious denominations against same-sex marriages.6 The parties to this litigation have not presented those issues directly, but to the degree the issue has been articulated it presents legitimate concern and reflects yet another matter better suited to legislative consideration and public debate. We are now in the midst of a definitional process that will affect how the citizens of California go forward in the 21st century.

This section I think is very true. 

The struggles gay men and lesbians have faced to become who they are individually is not to be understated. And though this record does not contain findings of fact nor evidence sufficient to support a conclusion one way or the other, if being gay or lesbian is an immutable trait or biologically determined, then we must conclude classification based on that status which deprives such persons of legitimate rights is suspect. Having endured the often long and difficult process of claiming their true identities, gay men and lesbians are now asking to be recognized as the equally loving and committed partners and capable family units they are, and to be afforded the same responsibilities and protections available to other families. The inequities of the current parallel institutions should not continue if one group of citizens is being denied state privileges and protections attendant to marriage because they were created with a sexual orientation different from the majority, if we are to remain faithful to our Constitution. Although we are being called upon to work together toward a mutual goal of liberty and justice, we must be careful about where the achievement comes from. If respect for the rule of law is to be maintained, courts must accept and abide by their limited powers. The Constitution is not some kind of “origami project” to be twisted and reconfigured to accomplish ends better left to the democratic process. To those who are waiting for the rewards and responsibilities of marriage, this process will seem too slow; to those who feel the challenge to their “sacred” civic institutions and the likelihood of change, it will seem too fast. The courts must move only at the pace, and within the limits, the law permits.

In other words, is she saying do it, but do it the right way?  I think so.  I think her message to gays is be patient.  It will happen, it will just take time.

But as she noted, the conflict of civic and religious principles needs to be sorted out first.

I will poke through the Dissent in my next blog.