California Supreme Court to California Voters: Drop Dead

In a previous post here (Californichusetts), we discussed the demerits of the underlying policy of same-sex marriage. Today, we're more concerned with how the court reached its decision -- the process -- and the implications of such a process for the future of democracy.

A liberal on a bulletin-board I frequent chastised me; "a court would never" -- I paraphase him -- "pull a claim of unconstitutionality out of hat!"

Oh yes they did, sez I; this is easily seen by anyone who actually reads California Chief Justice Ronald George's appalling opinion. But it's even more obvious when reading the magnificent and stunning dissent by Justice Marvin Baxter, which begins on page 128 of the pdf linked above. Baxter wrote perhaps the most devastating dissenting opinion since Hugo Black's dissent on Griswold.

In this case, the court admitted that there was no history at all, none whatsoever, of same-sex marriage even being contemplated in the writing of the California constitution. So how on earth could the court be "in accordance with the constitution" when they say -- and this really is their reasoning -- that the fact that the legislature has passed some legislative relief for gays that does not include marriage means the legislature has inadvertently given "exlicit official recognition" (George's words) to the putative right of persons of the same sex to marry?

It's completely loony. From Baxter (pp. 5-7, 132-134 of the pdf -- the italics are Baxter's):

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 statute, 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.

The rest is equally brutal.

This decision was a pure power-play: Four members of the court wrestled the other three to the ground, declaring a brand, new right to marry a person of the same sex... and at the same time, declared homosexuality to be a "suspect class," like race, requiring "strict scrutiny" to be applied to any law that affects disparately those with different sexual preferences.

Who needs a legislature, an executive, democracy, or the people themselves, when we have black-robed masters who will so kindly tell us what to do?

But worse even than the policy is the usurpation of the will of the people. The people are striking back now: More than 1.2 million Californios signed a petition to place upon the November ballot a state constitutional amendment that has the exact wording of Proposition 22, which passed in 2000 by 61.4% -- and which the court just struck down. The idea is that if the constitution itself is amended to restrict marriage to one man, one woman, then clearly the court cannot continue to find that same-sex marriage is required by the very constitution that forbids it.

But of course, that assumes at least a faint, embryonic heartbeat of judicial dignity and humility in the breasts of the four members of the majority. If the citizen initiative constitutional amendment passes, but the justices in fact defy the will of the people and double down on same-sex marriage... well, we'll have a full-scale revolt in the Golden State, like the one that led to three California Supreme Court justices being recalled by the people (for persistently preventing the death penalty from being executed).

Democracy only works, and only serves to fuse individuals into a society, when voters have reason to believe their votes actually count. That allows us to accept defeat graciously, because we know that if in the future, we managed to get a majority to see it our way, we can reopen the policy in question.

But if the judiciary only supports democracy so long as the judges agree with the vote, then citizens will have no choice but to seize jurisdiction from the courts. And that could signal the beginning of the end of Western Civ. So let us hope the court accepts passage of the amendment with the same grace that those of us who support it would accept the will of the people should it lose.

Pawing the money

The next case takes place across the country, in the District of Columbia; the Treasury Department is in a lather after a three-judge panel of the D.C. Circus ruled today that folding money "discriminates" against the blind.

And why is that? Because blind people cannot see what denomination bill they have in their wallets! AP takes up the trail of tears:

The U.S. acknowledges the current design hinders blind people, but it argues that they have adapted. Some rely on store clerks to help, some use credit cards and others fold certain corners to help distinguish between bills....

The court ruled 2-1 that such adaptations were insufficient under the Rehabilitation Act. The government might as well argue that there's no need to make buildings accessible to wheelchairs because handicapped people can crawl on all fours or ask passers-by for help, the court said.

"Even the most searching tactile examination will reveal no difference between a $100 bill and a $1 bill. The secretary has identified no reason that requires paper currency to be uniform to the touch," Judge Judith W. Rogers wrote for the majority.

Courts don't decide how to design currency. That's up to the Treasury Department [well... it used to be!], and the ruling forces the department to address what the court called a discriminatory problem.

This is absurd, of course. Recorded phone-help systems at government offices ("Push 1 for English, 2 for Spanish, 64 for Serbo-Croatian...") discriminate against the deaf, because they cannot access that information without "adaptations," like a texting phone. (The recorders of these phone-help trees "might as well argue that there's no need to make buildings accessible to wheelchairs because handicapped people can crawl on all fours or ask passers-by for help.")

Elevator buttons in tall buildings discriminate against the vertically challenged, because they cannot reach the top buttons. Police discriminate against schizophrenics who want to live on the streets, because the cops continually arrest them for sleeping on the sidewalk.

Everybody has some inconvenience in life, and especially so when he has a disability. But failure to create a landscape with no sharp edges -- "Nerfworld," I dubbed it in a story anthologized here -- is not automatically unlawful discrimination.

One blind man makes exactly that point:

Not all blind people agree that U.S. money should be changed. The National Federation of the Blind sided with the government and told the appeals court that no changes were needed.

Charlie Richardson, the legally blind manager of Charlie's Express Stop inside the Capitol in Albany, N.Y., said he doesn't oppose changing the money but disagrees with the ruling.

"To actually be discriminated against is to have something denied to you," Richardson said. "We're not denied the use of money."

But the court did not agree; it has ordered Treasury to redesign all American currency, without regard to what Congress and the President have already decided.

Polar bear on a stick

Finally, recall that a few days ago, some environmental extremists won a court ruling from federal Judge Claudia Wilken, forcing the Department of the Interior to immediately rule whether the polar bear (Ursus maritimus) falls under the Endangered Species Act. As we all expected, this was simply Phase One of a deep plan.

The plaintiffs dropped the other shoe yesterday -- Phase Two of the judicial coup d'état: The enviro-mentally challenged loons have gone back to court to abuse the judicially forced listing of polar bears as "threatened" by "global warming" (which supposedly causes the Arctic ice to melt): They demand a judicial order forcing the Bush administration to implement the Kyoto Protocol, or some similar regulatory regime to combat Anthropogenic Global Climate Change (AGCC) -- a.k.a. Globaloney.

Judge Wilken issued her ruling in spite of (possibly in complete ignorance of) the fact that there is a raging conflagration within the atmospheric sciences community on whether global temperatures are still warming now, whether they will warm in the near future, whether it has anything significantly to do with human activity, and whether we can do anything about it anyway. I doubt she even cared... some scientists said Globaloney would kill the polar bears, and her heart simply bled at the thought.

Thus, she flexed her judicial muscles and forced Interior to dance to her tune. And now the same plaintiffs that she favored once want her to use her robe to force an anti-climate-change policy upon the entire United States, outside the democratic system:

[Interior Secretary Dirk] Kempthorne, echoing President Bush, said last week the Endangered Species Act was the wrong tool to reduce greenhouse gas emissions. Kempthorne that he would propose "common sense modifications" to make sure the polar bear listing would not set backdoor climate policy outside the normal system of political accountability.

The conservation groups said Kempthorne acted improperly.

"On the one hand, he's acknowledging that global warming is impacting polar bears," said Melanie Duchin of Greenpeace in Alaska. "On the other hand, he's not willing to do anything about it. We're asking the administration to uphold the spirit and intent of the Endangered Species Act."

Since when was the "spirit and intent" of the ESA to completely bypass Congress and the President to allow judges to enact sweeping changes to our energy, economic, and pollution regulations, all ordered by an unelected person who holds her appointment for life? I reckon I missed that part of the debate over passage of the Endangered Species Act.

In this case, it's clear that the polar bears don't even enter into the affair, except as hairy, white bludgeons by which leftist enviromentalists hope to pound the Bush administration into combating AGCC -- no matter how many scientists doubt the connection between human activity and global warming, and no matter what it does to the economy. They want to bypass not only the democratic process but also the normal scientific vetting process; instead, they would use the courts to render a final verdict on the issue... quickly, before somebody discovers something contrary!

That last line is not a joke; I believe some of the activists are actually aware of the rising chorus of well-credentialed scientific naysayers, and they want to cut them off at the knees. Once the Judiciary has decided, how could mere research undo that judicial decision? The colossal edifice of Globaloney would stand thus in perpetuity, unaffected by the tides and vagaries of honest scientific theory.

The leaden thread

In the brilliant "Rumpole" stories by John Mortimer, British barrister Horace Rumpole often argues in the Old Bailey that British justice hangs by a "golden thread," the principle that the crown must prove a man guilty before he can be punished, that he starts out with the presumption of innocence. But in America's courtrooms today, we have a new principle -- the leaden thread of judicial activism: This is the presumption by an increasing number of judges that, by virtue of the very robes they wear, they know best how to govern society.

In his column yesterday on the same-sex marriage decision by the California Supreme Court, Dennis Prager nailed the "hubris" -- I would say narcissism -- that applies to all the judges discussed above:

Another reason for this decision is arrogance. First, the arrogance of four individuals to impose their understanding of what is right and wrong on the rest of society. And second is the arrogance of the four compassionate ones in assuming that all thinkers, theologians, philosophers, religions and moral systems in history were wrong, while they and their supporters have seen a moral light never seen before. Not a single religion or moral philosophical system -- East or West -- since antiquity ever defined marriage as between members of the same sex.

That is one reason the argument that this decision is the same as courts undoing legal bans on marriages between races is false. No major religion -- not Judaism, not Christianity, not Islam, not Buddhism -- ever banned interracial marriage. Some religions have banned marriages with members of other religions. But since these religions allowed anyone of any race to convert, i.e., become a member of that religion, the race or ethnicity of individuals never mattered with regard to marriage. American bans on interracial marriages were not supported by any major religious or moral system; those bans were immoral aberrations, no matter how many religious individuals may have supported them. Justices who overthrew bans on interracial marriages, therefore, had virtually every moral and religious value system since ancient times on their side. But justices who overthrow the ban on same-sex marriage have nothing other their hubris and their notions of compassion on their side.

These undemocratic judges ride high above the fray on great, white stallions, passing lordly judgment -- immune from being gainsayed, corrected, or even criticized:

• Four (out of seven) justices on the California Supreme Court know better than the legislature, the governor, even the people themselves; they know better than thousands of years of religious and philsophical systems how to organize society. And by golly, these Anointed -- with their Vision of the perfectability of society -- will fix all our problems for us.
• The D.C. Circus (well, two out of a three-judge panel of the appellate court) feel great compassion for the blind -- itself a noble emotion; so to assuage their feelings of pity and sympathy (and perhaps guilt at being sighted), they order the Treasury Department to implement the judges' own personal solution to the problem they themselves defined. (The decisions of the democratic branches of government which normally have jurisdiction over printing and engraving are irrelevant; those folks just don't share the Vision.)
• And lone Judge Wilken -- I know you're shocked to discover that she is a Clinton appointee, confirmed by the Democratic Senate of 1993 -- decides all by herself that polar bears must be designated as "threatened" (the plaintiffs now demand that be changed to "endangered," the stronger classification)... and she will decide, again all by herself, whether that means we must implement a drastic curtailing of energy usage, costing us hundreds of billions of dollars every year (irrelevant as an issue in the case) and damaging our ability to generate energy for generations to come (equally irrelevant... the poor, suffering polar bears!), all to reduce greenhouse gas emissions that may or may not have anything to do with Arctic sea ice that may or may not be melting in temperatures that may or may not still be rising.

Three cases; three separate jurisdictions; one leaden thread: "benevolent" judicial tyranny... for our own good. And one presidential candidate who promises to appoint that exact kind of judge, and only that kind, in every federal judicial opening he is allowed to fill. Judges who will rule for life, with no realistic way to get them out of office, no matter how egregiously they rule. (Thelton Henderson was never impeached, despite his ghastly ruling that refusing to discriminate on the basis of race constitutes discrimination on the basis of race.)

All right, conservatives... still think there's "not a dime's worth of difference" between John McCain and Barack H. Obama?

It's well at this point to recall Auric Goldfinger's great rule of threes; it was only alluded to in the Ian Fleming "James Bond" novel Goldfinger, I believe, but stated explicitly in the movie: "Once is happenstance, twice is coincidence. The third time is enemy action."

Just so long as we all know what's going on here.