bismark wrote:this whole thing about legislating from the bench is interesting to me. it seems as if this precedence was set way back in marbury vs madison. the courts have the right under the constitution to exercise judicial review of any actions made by the legislative branch (in other words the "democratic" part of our government). any law that passes the legislature is technically by majority democratic consent (through representatives of course), but the courts have reserved the right to declare a law unconstitutional. it seems to me like the supreme court of california was exercising judicial review and striking down a law it found to be unconstitutional. this is obviously why prop 8 proponents are pushing for a constitutional amendment, so that prop 22 will no longer be unconstitutional (thus removing the supreme courts ability to strike it down). i guess my point in all of this is i find it annoying that people are blaming the courts for this. i think that is a poor argument that shows a lack of understanding of US political science.
Bismark, I agree that there is a role for the courts to review the constitutionality of cases brought before it. The problem is that the courts do not morally and legally have an
unlimited right to go beyond a strict interpretation of the constitution and pretend to see something in the constitution in order to achieve a social change they deem desirable. They have to wait for the people to make such changes. Otherwise they violate the separate of powers, which does not give the court the right to
in effect legislate new laws. This is the true understanding of US political science. In his minority opinion Justice J. Baxter explained it pretty well in the case we are talking about here (and thank you for the reference):
"The majority opinion reflects considerable research, thought, and effort on a significant and sensitive case, and I actually agree with several of the majority's conclusions. However, 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."
...
"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.
"In doing so, the majority holds, in effect, that the
Legislature has done
indirectly what the Constitution prohibits it from doing directly. Under article II, section 10, subdivision (c), that body cannot unilaterally repeal an initiative statue, such as Family Code section 308.5, unless the initiative measure itself so provides. Section 308.5 contains no such provision. Yet the majority suggests that, by enacting
other statutes which
do provide substantial rights to gays and lesbians--including domestic partnership rights which, under section 308.5, the Legislature
could not call "marriage" -- the Legislature has given "explicit official recognition" (maj. opn.,
ante, at pp. 68, 69) to a California right of equal treatment which, because it includes the right to marry, thereby invalidates section 308.5
"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 statute otherwise immune from legislative interference. Though the majority insists otherwise, its pronouncement seriously oversteps the judicial power. The majority purports to apply certain fundamental provisions of the state Constitution, but it runs afoul of another just as fundamental -- article III, section 3, the separation of powers clause. This clause declares that "[t]he powers of state government are legislative, executive, and judicial," and that "[p]ersons charged with the exercise of one power
may not exercise either of the others" except as the Constitution itself specifically provides. (Italics added)"
