johnm214 said:

Where are all the gay haters or those who believe the constitution doens't protect the gays?

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XIV: section 1

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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Veritas said:

This ruling sets the precedent for other states to change their own statutes regarding same-sex marriage.

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zappaisgod said:

If I'm missing something correct me but that was a State Court opinion dealing only with issues of the State Constitution. It has zero application outside of California and the 14th Amendment to the US Constitution argument has zero relevance to this finding as the US Constitution was not under examination. Yes?

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Article I, section 1 provides: “All people are by nature free and independent
and have inalienable rights. Among these are enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and pursuing and obtaining
safety, happiness, and privacy.” (Italics added.)
Article I, section 2, subdivision (a), provides: “Every person may freely
speak, write and publish his or her sentiments on all subjects, being responsible for
the abuse of this right. A law may not restrain or abridge liberty of speech or
press.” (Italics added.)
Article I, section 7, subdivision (a), provides in relevant part: “A person
may not be deprived of life, liberty, or property without due process of law or
denied equal protection of the laws . . . .”

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zappaisgod said:

Veritas said:

This ruling sets the precedent for other states to change their own statutes regarding same-sex marriage.

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I don't think it does anything of the kind other than establishing some language which might be useful in an argument in another state. Like I said, California, or any other state, could amend their constitution to allow a ban. That would totally remove this decision from relevance. THEN, if challenged, there would become a larger US Constitution argument, which has yet to be tackled.

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Discussing the California marriage ruling on Slate, Dahlia Lithwick argues, inconsistently, both that “judicial activism” is “an empty label” and that there’s a “difference between judicial activism and judicial action.” She’s right on the latter point and wrong on the former—and she’s particularly wrong not to recognize the California marriage ruling as a textbook case of judicial activism.

Let’s wade through some of her confusion:

1. In presenting California as a “hotbed of activism” on gay marriage, Lithwick blurs the fundamental distinction between an “activist citizenry,” an “activist Legislature,” and an “activist governor,” on the one hand, and activist judges, on the other. The concept of judicial activism is rooted in separation-of-powers principles and recognizes that the realm of judges is a limited one. When citizens, legislators, and governors are acting within their own realms, the term “activism” ought to be “action”—it’s Lithwick herself who doesn’t recognize the proper distinction between “activism” and “action”—and is in any event properly not an epithet in those contexts. Who thinks of “citizen activists” as pejorative (independent of the causes being advocated)?

2. Lithwick seems amazed that some folks could criticize the California marriage decision before reading it. It’s rather charming, I suppose, that after all the lawless rulings on same-sex marriage, one might be so naïve as to think that maybe, just maybe, there’s a right to same-sex marriage hidden somewhere in the penumbras and emanations of the California constitution, and that we just need our judicial lords to enlighten us.

3. Lithwick contends, without any supporting argument, that chief justice George’s majority opinion offers “a rigorous close reading of state law and precedent.” I see instead the judicial-activist approach that law professor Peter Edelman approvingly ascribed to his old boss, Justice Arthur Goldberg:

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His first question in approaching a case always was, “What is the just result?” Then he would work backward from the answer to that question to see how it would comport with relevant theory or precedent.

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In any event, even if one indulged the counterfactual assumption that the court’s ruling flows from its precedents, a state supreme court justice is not bound to follow, much less extend, activist precedent. When one understands the separation-of-powers objections to judicial activism, it is no defense to the charge of judicial activism to contend that the activism has been going on for decades.

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