How the California Supreme Court got it wrong

On Thursday, May 15, 2008 That California Supreme Court overruled the state statute, voted on and approved by the citizens of California, that legally defined marriage as being between a man and a woman. The recent history of this issue in California is as follows:

On March 7, 2000, the people of California passed an initiative stating that “[o]nly marriage between a man and a woman is valid or recognized in California.”

In February 2004, the mayor of San Francisco gained international attention and ignited controversy when he directed city officials to ignore the law and issue marriage licenses to same-sex couples. He justified his actions by claiming the California Constitution requires the government to allow same-sex couples to marry.
The California Supreme Court intervened and voided the illegal licenses on the ground that the mayor had no authority to disregard state law. However, the court did not decide whether the California Constitution requires the state to allow same-gender marriage. That issue became the subject of additional litigation.

In March 2005, a state trial court judge ruled that the state must allow same-gender marriage. That decision was later overturned by the Court of Appeal. The case is now before the California Supreme Court, which will make the final decision on the issue.

The Church of Jesus Christ of Latter-day Saints has joined with the California Catholic Conference, the National Association of Evangelicals, and the Union of Orthodox Jewish Congregations of American in filing a brief to the California Supreme Court defending the established definition of marriage as the union of a man and a woman. The
Brief is available on Newsroom.
Some of the interesting points of the brief are as follows:

APPLICATION FOR PERMISSION TO FILE AMICI CURIAE BRIEF
AND AMICI CURIAE BRIEF OF
THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS,
CALIFORNIA CATHOLIC CONFERENCE,
NATIONAL ASSOCIATION OF EVANGELICALS, AND
UNION OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA
IN SUPPORT OF RESPONDENT STATE OF CALIFORNIA


Justice Stephen G. Breyer recently emphasized these themes: “[T]he Constitution [is] centrally focused upon active liberty, upon the right of individuals to participate in democratic self-government.” (Breyer, Active Liberty: Interpreting Our Democratic Constitution (2005), p. 21.) In his view, “courts should take greater account of the Constitution’s democratic nature when they interpret constitutional and statutory texts.” (Id. at 5.) Judicial restraint – i.e, “judicial modesty in constitutional decision-making” – is essential. (Id. at 37; see also id. at 17.)

Nowhere is judicial deference to democratic self-government more appropriate than in California. Here, the people have zealously retained their sovereign right to set public policy. The California Constitution places unique emphasis on democratic participation in policymaking. That emphasis represents a constitutional lens through which this Court should view its role in adjudicating these cases.

More specifically, on no subject is judicial restraint more warranted than in the present challenge to the time-honored definition of marriage. “[T]he structure of society itself largely depends upon the institution of marriage.” (Marvin v. Marvin (1976) 18 Cal. 3d 660, 684.) Like generations of Californians, when penning those words in 1976, this Court understood “marriage” to be the union of a man and a woman. It understood that marriage is a social “institution,” not merely a private arrangement between two people. And it understood that what is at stake in marriage is no less than the wellbeing “of society itself.” Page 28 of 73

A. The Judiciary Is Ill-Suited to Make Basic Public Policy
Decisions. The marriage debate turns on conflicting social and moral values and competing visions of how society should be ordered. Courts are not the right forum for this far-reaching discussion. As Professor Bickel explained, the judiciary is inherently ill-equipped to make such defining public policy choices:

The judicial process is too principle-prone and principlebound – it has to be, there is no other justification or explanation for the role it plays. It is also too remote from conditions, and deals, case by case, with too narrow a slice of reality. It is not accessible to all the varied interests that are in play in any decision of great consequence. It is, very properly, independent. It is passive. It has difficulty controlling the stages by which it approaches a problem. It rushes forward too fast…

For all these reasons, it is, in a vast, complex, changeable society, a most unsuitable instrument for the formation of policy. (Bickel, The Supreme Court and the Idea of Progress (1978), p. 175.) B. California’s Constitution Places Heavy Reliance on the Active Involvement of the People in Fashioning Public
Policy. Deference to the democratic process in matters of bedrock public policy is particularly appropriate in California, where the Constitution places heavy emphasis on the reserved powers of the people and democratic decision-making.

1. The California Constitution reserves “all political power” to the people.

The California Constitution represents “the highest expression of the will of the people of the state” (Ex Parte Braun (1903) 141 Cal. 204, 211), and “the preeminent expression of California law enacted by the people.” (American Academy of Pediatrics v. Lundgren (1997) 16 Cal. 4th 307, 314.) Article 2 § 1 of the Constitution declares, “All political power is inherent in the people.” (Cal. Const., Art. II, § 1 (emphasis added).) The three branches of California’s government have only as much power as the people have delegated to them under the Constitution.

Unlike the United States Constitution, which has “no mechanism for lawmaking directly by the people” (Mannheim & Howard, A Structural Theory of the Initiative Power in California (1998) 31 Loy. L.A. L. Rev. 1165, 1167), California’s Constitution reserves to the people powerful means of directly exercising their political power. Indeed, California is “at the radical end of the direct democracy spectrum.” (Id. at 1173.) The people have reserved to themselves the right to legislate directly through the initiative process by simple majority vote. (Cal. Const., Art. II, §§ 8 & 10.) They can “approve or reject” legislation, in whole or part, through the referendum process and recall their elected officials mid-term. (Id. §§ 9 & 13.) By these and other means, the people have constitutionally placed themselves at the center of policymaking.

This constitutional emphasis on the people’s right to directly decide policy issues is an interpretive lens through which this Court should view its role in the marriage debate. It is not the function of the judiciary to create new constitutional rights or to expand existing rights beyond what the people intended. Courts have no authority to create a new constitutional right and thereby limit an arena where the people have decided to govern themselves through the ordinary democratic process. All constitutional change, including the creation of new rights, must come from the people. The people and the legislature, to the extent the people have delegated power to it, are “the creative element in the government.”
(Nougues v. Gouglass (1857) 7 Cal. 65, 70.)

2. California courts and members of this Court have repeatedly emphasized the importance of deferring to democratic bodies in matters of public policy. California courts have repeatedly emphasized the importance of allowing democratic bodies to create and implement public policy. “The determination of public policy of states resides, first, with the people as expressed in their Constitution and, second, with the representatives of the people − the state Legislature.” (Jensen v. Traders & General Ins. Co. (1959) 52 Cal. 2d 786, 794.)

CONCLUSION
Plaintiffs ask this Court to alter the basic definition of marriage and thereby change our shared understanding of this vital social institution. That would be a momentous change, one with serious consequences for married couples, children, and families. With deepest respect for this Court, when it comes to the definition of marriage the stakes are simply too high for the issue to be decided by a handful of judges, no matter how able or learned. As a matter of democratic legitimacy and judicial prudence, any such change should come from the people and their legislative representatives.

The people of California and their political institutions are fully engaged in a democratic conversation about the nature and meaning of marriage. In the best of the American democratic tradition, “we the people” are talking, deliberating, deciding. Whatever the outcome, the conversation about this basic social institution should be allowed to continue without a profoundly divisive, judicial short-circuiting of the democratic process.
Page 71 of 73

By overturning the will of the people this week, the State of California’s Supreme Court has started on a slippery slope that will lead to the break down of our moral compass, and as a consequence, the weakening of our very society.

Consider the following article that explains the benefits children receive that are raised in a home with a father and a mother that reads in part:

To be concerned with proper child development is to be concerned about making sure that children have daily access to the different and complementary ways mothers and fathers parent.

If Heather is being raised by two mommies and Brandon is being raised by Daddy and his new husband-roommate, Heather and Brandon might have two adults in their lives, but they are being deprived of the benefits found in the unique influences found in a mother and father’s differing parenting styles. Much of the value mothers and fathers bring to their children is due to the fact that mothers and fathers are different. And by cooperating together and complementing each other in their differences, they provide these good things that same-sex caregivers cannot. The important value of these gender-based differences in healthy child-development will be explored here.

The fathering difference is explained by fathering scholar Dr. Kyle Pruett of Yale Medical School in his book Fatherneed: Why Father Care is as Essential as Mother Care for Your Child. Pruett says dads matter simply because “fathers do not mother.” Psychology Today explains, “Fatherhood turns out to be a complex and unique phenomenon with huge consequences for the emotional and intellectual growth of children.” A father, as a male parent, brings unique contributions to the job of parenting that a mother cannot.

Likewise, a mother, as a female parent, uniquely impacts the life and development of her child, as Dr. Brenda Hunter explains in her book The Power of Mother Love: Transforming Both Mother and Child. Erik Erikson explained that father love and mother love are qualitatively different kinds of love. Fathers “love more dangerously” because their love is more “expectant, more instrumental” than a mother’s love.

The following are some of the most compelling ways mother and father involvement make a positive difference in a child’s life. The first benefit is the difference itself.

“Children need mom's softness as well as dad’s roughhousing.”

Mothers and Fathers Parent Differently

This difference provides an important diversity of experiences for children. Dr. Pruett explains that fathers have a distinct style of communication and interaction with children. Infants, by 8 weeks, can tell the difference between a male or female interacting with them. Stanford psychologist Eleanor Maccoby, in her book The Two Sexes, explains mothers and fathers respond differently to infants. Mothers are more likely to provide warm, nurturing care for a crying infant. This diversity in itself provides children with a broader, richer experience of contrasting relational interactions —more so than for children who are raised by only one gender. Whether they realize it or not, children are learning at earliest age, by sheer experience, that men and women are different and have different ways of dealing with life, other adults and their children.

The above article also shows the importance of married couples striving to improve their marriages and to consider divorce as the last option as opposed to the all too frequent first option in dealing with challenges and struggles inherent in most marriages.

This post is not my intent to write an anti-gay rant. Homosexuality is not a sin that I have had to struggle with, but I’m pretty sure that I shouldn’t be casting stones at others until I am without sin. I’m not there yet, and I have this sneaking suspicion that if I do get there, I’m not going to want to cast stones anyway.

The LDS churches official position on the decision of the California Supreme Court is as follows:
“SALT LAKE CITY 16 May 2008 The Church of Jesus Christ of Latter-day Saints recognizes that same-sex marriage can be an emotional and divisive issue. However, the Church teaches that marriage between a man and a woman is ordained of God and that the family is the basic unit of society. Yesterday’s California Supreme Court decision is unfortunate.”

When I started researching for this post, I went to several religious websites that discussed homosexuality. Most of them said that gays will burn in hell. My thoughts were, “yeah ok maybe, but I will to if I don’t keep the commandments as well, and the last time I checked, that’s not the only commandment.” I was left wondering if the people that wrote these articles on their websites then went home kicked their dog and yelled at their wife and children. I could be wrong, but a lot of them seemed very angry. It’s always rubbed me the wrong way when people adopt an, “I’m going to heaven because I’m a (fill in your religious organization here – including Mormons, because I’ve definitely met some that feel this way), but you’re going to be miserable for eternity because you’re not like me.”

Point being, I wanted to quote more than just “LDS” thoughts on this subject. However, the best thoughts I could find were from the church’s own website. Feel free to comment and add your findings if they differ from mine.

I did find an interview with Elder Dallin H. Oaks that I liked, it reads in part:

PUBLIC AFFAIRS: At the outset, can you explain why this whole issue of homosexuality and same-gender marriage is important to the Church?

ELDER OAKS: This is much bigger than just a question of whether or not society should be more tolerant of the homosexual lifestyle. Over past years we have seen unrelenting pressure from advocates of that lifestyle to accept as normal what is not normal, and to characterize those who disagree as narrow-minded, bigoted and unreasonable. Such advocates are quick to demand freedom of speech and thought for themselves, but equally quick to criticize those with a different view and, if possible, to silence them by applying labels like “homophobic.” In at least one country where homosexual activists have won major concessions, we have even seen a church pastor threatened with prison for preaching from the pulpit that homosexual behavior is sinful. Given these trends, The Church of Jesus Christ of Latter-day Saints must take a stand on doctrine and principle. This is more than a social issue — ultimately it may be a test of our most basic religious freedoms to teach what we know our Father in Heaven wants us to teach.

PUBLIC AFFAIRS: Let’s say my 17-year-old son comes to talk to me and, after a great deal of difficulty trying to get it out, tells me that he believes that he’s attracted to men — that he has no interest and never has had any interest in girls. He believes he’s probably gay. He says that he’s tried to suppress these feelings. He’s remained celibate, but he realizes that his feelings are going to be devastating to the family because we’ve always talked about his Church mission, about his temple marriage and all those kinds of things. He just feels he can’t live what he thinks is a lie any longer, and so he comes in this very upset and depressed manner. What do I tell him as a parent?

ELDER OAKS: You’re my son. You will always be my son, and I’ll always be there to help you.
The distinction between feelings or inclinations on the one hand, and behavior on the other hand, is very clear. It’s no sin to have inclinations that if yielded to would produce behavior that would be a transgression. The sin is in yielding to temptation. Temptation is not unique. Even the Savior was tempted.
The New Testament affirms that God has given us commandments that are difficult to keep. It is in 1 Corinthians chapter 10, verse 13: “There hath no temptation taken you but such as is common to man: but God is faithful, who will not suffer you to be tempted above that ye are able; but will with the temptation also make a way to escape, that ye may be able to bear it.”
I think it’s important for you to understand that homosexuality, which you’ve spoken of, is not a noun that describes a condition. It’s an adjective that describes feelings or behavior. I encourage you, as you struggle with these challenges, not to think of yourself as a ‘something’ or ‘another,’ except that you’re a member of The Church of Jesus Christ of Latter-day Saints and you’re my son, and that you’re struggling with challenges.
Everyone has some challenges they have to struggle with. You’ve described a particular kind of challenge that is very vexing. It is common in our society and it has also become politicized. But it’s only one of a host of challenges men and women have to struggle with, and I just encourage you to seek the help of the Savior to resist temptation and to refrain from behavior that would cause you to have to repent or to have your Church membership called into question.

PUBLIC AFFAIRS: If somebody has a very powerful heterosexual drive, there is the opportunity for marriage. If a young man thinks he’s gay, what we’re really saying to him is that there is simply no other way to go but to be celibate for the rest of his life if he doesn’t feel any attraction to women?

ELDER OAKS: That is exactly the same thing we say to the many members who don’t have the opportunity to marry. We expect celibacy of any person that is not married.

PUBLIC AFFAIRS: So you are saying that homosexual feelings are controllable?

ELDER OAKS: Yes, homosexual feelings are controllable. Perhaps there is an inclination or susceptibility to such feelings that is a reality for some and not a reality for others. But out of such susceptibilities come feelings, and feelings are controllable. If we cater to the feelings, they increase the power of the temptation. If we yield to the temptation, we have committed sinful behavior. That pattern is the same for a person that covets someone else’s property and has a strong temptation to steal. It’s the same for a person that develops a taste for alcohol. It’s the same for a person that is born with a ‘short fuse,’ as we would say of a susceptibility to anger. If they let that susceptibility remain uncontrolled, it becomes a feeling of anger, and a feeling of anger can yield to behavior that is sinful and illegal.

We’re not talking about a unique challenge here. We’re talking about a common condition of mortality. We don’t understand exactly the ‘why,’ or the extent to which there are inclinations or susceptibilities and so on. But what we do know is that feelings can be controlled and behavior can be controlled. The line of sin is between the feelings and the behavior. The line of prudence is between the susceptibility and the feelings. We need to lay hold on the feelings and try to control them to keep us from getting into a circumstance that leads to sinful behavior.

In another article President Gordon B. Hinckley said:
“Nevertheless, and I emphasize this, I wish to say that our opposition to attempts to legalize same-sex marriage should never be interpreted as justification for hatred, intolerance, or abuse of those who profess homosexual tendencies, either individually or as a group. As I said from this pulpit one year ago, our hearts reach out to those who refer to themselves as gays and lesbians. We love and honor them as sons and daughters of God. They are welcome in the Church. It is expected, however, that they follow the same God-given rules of conduct that apply to everyone else, whether single or married" (“Why We Do Some of the Things We Do,” Ensign, Nov. 1999, 54).

After initially creating this post, I found this article that I also liked.

In conclusion, The State of California overstepped its bounds with its latest ruling. They should have abided by the will of the people. If the will of the people was in support of gay marriage, then that should’ve been respected as well, and my personal opinions on the subject should’ve been ignored. The vast majority of Californians justifiably could feel disenfranchised by this latest ruling, which will breed contempt for government as a whole, and the judiciary in particular.

Marriage should be defined as a union between a man and a woman. Any other definition cheapens the status that has been held by society going back to the beginning of time.

Children are best served by having a male father and a female mother. Their needs should not become subject to the whims of those that want to live in a gay lifestyle but feel that they should raise children as well. If nature doesn’t allow two men or two women to conceive between them, there’s probably a good reason for it.