California Supreme Court "strikes down" normal marriage - continues constitutional crisis throughout America.

Citizens need to come to grips with legal role of courts

May 15, 2008

Today the California Supreme Court basically copied what the Massachusetts Supreme Court did in November, 2003: They court declared that laws limiting marriage to one man and one woman are "unconstitutional" and that perpetuating such laws cannot be allowed because it makes homosexuals to be "second-class citizens".

WorldNetDaily news report of today's decision.

Read the California Supreme Court ruling HERE.

Read the Massachusetts Supreme Court ruling (11/2003) HERE.

The California ruling seems to be very similar to the Massachusetts ruling in 2003. It repeats many of the same points. It's also based on creating a new invented "right", and claiming that the State lacks a logical and rational reason to have imposed traditional marriage. It's lunacy.

But there's a larger issue involved which this brings to a head and will continue to plague Americans unless they do something about it.

When Massachusetts ruling hit us, a few of our key activists along with some legal experts put in an enormous amount of time studying the legal issues surrounding it. This situation -- and Gov. Romney's poor reaction to it at the time -- forced the realization that such judicial activism is not only unconstitutional, but that our constitutions were written specifically to keep that from happening.

We've been telling people all along to read the Constitution. In most states, and particularly in Massachusetts, the constitution states that courts do not have the right to change laws, destroy laws, or create new laws. It's in plain black and white in the Massachusetts constitution, but it's been ignored here for over a century. It was written that way for the purpose of keeping courts of doing these things. Unfortunately, over the years that has eroded, but it still exists. We haven't studied the California constitution, but we suspect that it's written there, too.

The intended role for courts has been that their power only extends to the cases they rule in. The concepts of "case law" and "overturning laws" exist nowhere most constitutions. Similarly, the U.S. constitution does not give courts the right to overturn federal laws. It's simply evolved that way, and now we're suffering for it.

Massachusetts Constitution vs the judges.

In Massachusetts, at least, the argument is not particularly complicated.

Under the Massachusetts Constitution, no power resembling what is often termed "judicial review" exists except as an advisory function to the other two branches. The discussion of that should begin and end with a reading of the relevant articles of the state constitution (see attached Mass. Constitution excerpts). Thus, anyone asserting that the Goodridge decision "legalized" homosexual marriage in Massachusetts is fundamentally wrong about one of the clearest and most forceful parts of the state constitution.

"[T]he people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent." (Mass. Const. Part I, Article X)

There is no Marbury v. Madison or similar extra-constitutional exotica that overruled articles of the Massachusetts Constitution. Nor could there be, since the Massachusetts Constitution emphatically denies the judiciary the power to strike down laws or to suspend their enforcement or to assume any of the policy-making responsibilities of the elected branches. For state courts and state constitutions, Marbury and the (disputable) authority of federal judges is utterly irrelevant.

"The power of suspending the laws, or (suspending) the execution of the laws, ought never to be exercised but by the legislature..." (Article XX)

"... the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men." (Mass. Const. Part II, Ch. VI, Article XXX)

Moreover, the Goodridge decision, while noting that the statute excludes homosexual marriage, explicitly said it was not striking down the marriage statute and was leaving that to the Legislature. 

For a more thorough discussion on the Massachusetts situation, see our report and discussion here.  And thus, the Massachusetts Marriage Amendment, which would have allowed homosexual civil unions and domestic partnerships, did not address the real problem, only a symptom.

We are in a constitutional crisis that will unfortunately continue to spread.