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California Supreme Court Chief Justice Ronald M. George Likens Gay Marriage to Civil Rights Battles

Gay Marriage

The California Supreme Court

This puff piece in the Los Angeles Times in almost enough to make Flap GAG.

But as he read the legal arguments, the 68-year-old moderate Republican was drawn by memory to a long ago trip he made with his European immigrant parents through the American South. There, the signs warning “No Negro” or “No colored” left “quite an indelible impression on me,” he recalled in a wide-ranging interview Friday.

“I think,” he concluded, “there are times when doing the right thing means not playing it safe.”

Yet he described his thinking on the constitutional status of state marriage laws as more of an evolution than an epiphany, the result of his reading and long discussions with staff lawyers.

Talk about legislating from the bench.

Your honor, we don’t care about your “feelings” on the matter. Interpret the law according to the California Constitution.

What does the text of the California Constitution mean?

Flap predicts Chief Justice George will either retire prior to a confirmation election in 2010 or he will be thrown out of office by the wrath of California voters.

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California Gay Marriage Ruling Fuels Political Battle

California Supreme Court Overturns Gay Marriage Ban – The Response

California Supreme Court Overturns Gay Marriage Ban


19 thoughts on “California Supreme Court Chief Justice Ronald M. George Likens Gay Marriage to Civil Rights Battles

  1. I read this critique of the ruling from someone who supports same-sex marriage .

    Point 1 is, in my opinion, clearly correct. While some groups argued that a law passed by initiative that says that only marriages between a man and a woman are “valid and recognized” within California only dealt with the recognition of out-of-state marriages, that argument is a huge stretch. The plain language of the statute covers all marriages, not just out-of-state marriages. Also, it’s hard to imagine that voters thought that they were only blocking Massachusetts same-sex marriages. The odd thing is why the court even reached the issue– it’s really irrelevant, because either the CA Constitution requires marriage equality, in which case the statute has no force, or it doesn’t, in which case a pre-existing statute prohibits in-state same-sex marriages. This does tie into the constitutional amendment initiative that is likely to be on the November ballot, which uses the same language as the mini-DOMA initiative, but even so, that issue wasn’t properly before the court.

    Moving on to the substantive, constitutional arguments, the right to privacy argument seems pretty strong. There is an explicit, textual guarantee of privacy in the CA Constitution, adopted to incorporate the developing right to privacy doctrines of the 1970s into the constitution. A line of prior cases apply right to privacy concepts to protect a right to marriage. Given that, there is a good argument for including a right to marriage equality. However, it is important to note the failings of the court in this regard. Saying that a right to privacy and to define your family as you see fit includes a right to marriage makes sense– but then how do you deal with the polygamy and incest arguments? The majority relegates this to a footnote (n. 52, for those following along at home), basically saying lots of courts have said that polygamous or incestuous relationships are “inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry.” In other words, we think polygamy and incest are bad and icky, but we’re down with gay people (with a likely subtext of because they’re people like us, not like those freaky fundamentalist Mormons). I’m not arguing here that there should be a right to polygamous marriages recognized by the state or to incestuous marriages. My point is just that the court was not very effective at distinguishing them. And its methodology here was typical of its overall approach: the bulk of court decisions, including very old ones (citing two late Nineteenth Century anti-polygamy cases), weigh against polygamy, therefore no right to polygamy, but the bulk of cases weigh against marriage equality, but they’re wrong because we can cite this higher principle of a right to marriage. Very, very sloppy, not very persuasive reasoning. Far better to have addressed the matter more directly and persuasively, or to have punted (that’s not before us, there may be good reasons based on abuse, pragmatic concerns, or power dynamics that are different in those cases, bans on polygamy and incest may pass strict scrutiny, we’re not touching it now).

  2. California voters will be asked to amend the California Constitution in November should the initiative be qualified for the ballot.

    This will render the decision by the California Supreme Court invalid.

    The federal law, Defense of Marriage Act, already deals with other states.

  3. I have every confidence that the voters of California will right this wrongly decided case. And, throw off the court the Justices that voted for it.

  4. What you fail to realize, through your ignorance of the intent of the Courts, as explained by the founding fathers in The Federalist Papers, or a blind allegiance to the garbage, or re-making of history of the role of the Courts by the Republicans and other ignorant, intolerant, self-loathing, troubled individuals is that the ONE VERY IMPORTANT PURPOSE OF THE COURTS IS TO PROTECT MINORITY RIGHTS IN THE FACE OF THE TYRANNY BY THE MAJORITY. THAT IS WHY THE JUDICICAL BRANCH IS APPOINTED AND IMMUNE FROM DIRECT ELECTIONS – TO PROTECT THE COURT AND THE CONSTITUTION IN GUARANTEEING RIGHTS FOR ALL AMERICANS – NO MATTER HOW EMOTIONAL, IRRATIONAL, HATEFUL, RESENTFUL THE MAJORITY BECOMES. The right to marriage and the numerous rights it brings must be available to Gays – they are ENTITLED to the same rights and protections as straights. Nobody is dictating what ministers must do (if they don’t want to marry gays – fine!) or what your religious beliefs must be. But in terms of the government issuing marriage licenses, just as it issues drivers licenses, aside from your petty, empty, fairy tale religious beliefs which are irrelevant, as well as your hatred, intolerance, ignorance, and quest for division and war as encouraged by your Christian churches, is that the government is to issue such licenses to all Americans on a gender neutral basis. The CALIFORNIA SUPREME COURT, THEREFORE, DID THE MOST RIGHTEOUS, HONORABLE, INTELLIGENT, COURAGEOUS ACT IN UPHOLDING EQUAL RIGHTS FOR ALL AMERICANS IN THE FACE OF PETTY HATRED, FEAR, AND IGNORANCE.

    As for any amendment to the California Constitution by the voters of California, such action IS UNCONSTITUTIONAL. AMENDMENTS ARE TO BE MADE BY THE LEGISLATURE AND NOT BY ANNOYMOUS VOTERS WHO ARE NOT ACCOUNTABLE TO THEIR VOTES; THEY VOTE OUT OF HATRED, FEAR, AND IGNORANCE. IN ADDITION, ANY AMENDMENT, AS DICTATED BY THE CONSTITUTION, REQUIRES A 2/3RDs MAJORITY VOTE. SO ANY SIMPLE CALIFORNIA MAJORITY VOTE, i.e. 50.1% in favor to amend the California Constitution in defining marriage between a man and woman only, WILL BE UNCONSTITUTIONAL AND SHOULD BE APPEALED TO THE U.S. SUPREME COURT TO STRIKE DOWN SUCH VOTER INITIATIVES – WHICH ARE NOTHING MORE THAN A HIGHJACKING OF THE CONSTITUTION BY HATEFUL MOTIVATED FANATICAL RELIGIOUS BIGOTS AND OTHER INSECURE STRAIGHTS TRYING TO FIGHT OFF THEIR OWN HOMOPHOBIC DESIRES.

  5. Derek,

    You are wrong about Californians being able to amend the California state Constitution by initiative. It has been done before and will be done again.

    This is not to say there will not be another legal challenge in the federal courts even if the Marriage Protection initiative fails – which it won’t.

  6. Flap,

    You cannot read. I never said Californians couldn’t amend their constitution – of course they have, but this doesn’t mean that it is correct or will continue. I said such amendments (to the California Constitution) SHOULD be challenged on different grounds, and eventually they will be, and such amendments will be held unconstitutional. But this point is mute as:

    (1) The latest poll shows a majority of Californias do NOT support amending the CA constitution.
    (2) The CA Governor will NOT support such an amendment.
    (3) The latest poll shows 68% of Americans 18 to 30 years old support Gay Marriage, whereas only 38% of Americans over 65 do. Therefore, you are FIGHTING A LOSING BATTLE. YOU WILL LOSE. IF NOT NOW, YOU WILL LOSE EVENTUALLY. BUT I AM 100% POSITIVE YOU WILL LOSE THIS FALL. Everything is going against you.

    I guess fantasies of wining keep you somewhat sane. Remember, after November, when you lose, there is nothing you or anyone else can do to reverse the Court’s decision. Gay marriage will be law (and it will be in one week – I’m so glad you will be boiling over this…you just made my celebrating it that much sweeter.)

  7. If you should win in November there are 27 other states that have already made it unlawful.

    Good luck with recognizing your illegal and immoral marriage in another part of the country.

    Then, some of us will support amending the United States Constitution. We would only need a few more states.

    Chew on that a while, my friend.

  8. What you fail to realize, through your ignorance of the intent of the Courts, as explained by the founding fathers in The Federalist Papers, or a blind allegiance to the garbage, or re-making of history of the role of the Courts by the Republicans and other ignorant, intolerant, self-loathing, troubled individuals is that the ONE VERY IMPORTANT PURPOSE OF THE COURTS IS TO PROTECT MINORITY RIGHTS IN THE FACE OF THE TYRANNY BY THE MAJORITY.

    Name one author of the federalist papers who defined that defining marriage as a union between one man and one woman constitutes tyranny.

  9. I should add that in the 1990’s, there were legal battles in the courts of Hawaii over the issue of the constitutionality of defining marriage as a union between one man and one woman.

    The courts ruled that the state had no compelling reason to define marriage this way.

    The voters approved an amendment that made the Legislature the sole arbiter of this issue.

    the Legislature proceeded to define marriage as a union between one man and one woman.

    to hear it from same-sex marriage advocates, most of the people of Hawaii, the most ethnically and culturally diverse and tolerant states, defined marriage as between a man and a woman.

  10. It’s probably hidden in your articles somewhere, but could you tell us who, besides Chief Justice George, cast votes in favor of the decision to legalize marriages between same gender couples. You astutely point out that George is up for retention in 2010. It would certainly help voters who find this a pivotal issue to learn who the other three justices were who favored this decision. I’d appreciate a reply, & I think concerned voters would do well to know where all the justices stand on this issue, so they can vote on retention of justices appropriately.

  11. The Honorable Chief Justice
    Ronald M. George; and all the Associate Judges of The California Supreme Court,

    I am a senior woman of almost 69 years, a native born Californian, my Children and Grandchildren also were born in
    California, I have always loved this State and never had any desire to live elsewhere. I am writing to you about my
    concerns for the rights of California voters to receive the results of their votes! The people of California have spoken
    concerning Prop. 8, Traditional Marriage. I would not like our courts to over-rule the people decision. Marriage was
    made by God, in His Holy Word, between a Man and a Woman, for the pro-creation of our race, for betterment, and
    happiness of Families. God speaks in His word about His feelings about homosexual relationships. We all have
    been given free choice to choose God’s way or our own way, this is a decision the All people share, and we do
    all hold the same view! God loves all people, and His desire is for everyone to come to Him, He sent Jesus Christ
    into the world, to give us all a second chance, but He does not take away our free-will, it’s always our call! Frankly,
    I believe that the prayer’s of God’s people on this issue are what caused the Yes Vote on Prop.8. We do not
    discriminate against anyone, especially for their free-choice, we do pray for them and all people, because
    God is clear that we are to love everyone, but it is the sin that God hates! I will be praying that you will make
    clear response on this matter, as the people of California have chosen by their YES vote on Prop. 8.

    Sincerely,
    In Christ Jesus,

    Carol J. Oyler

  12. To be honest,I don’t care,if they want to marriage ,then go to marriage,it’s their rights.Even gay marriage is not allowed ,they can live togother as well

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