Tuesday, July 08, 2008

Activist Judges...

...or spineless, activist governors?

This past weekend, I violated the old adage of not talking religion or politics. No, this wasn't a first date (I'm happily married, thank you.) or at work (it was the weekend), but with gathered family. I tried to explain something I had just been reminded of, but obviously didn't explain it well, based on the replies and blank looks I received. Well, here's Gregg Jackson explaining it well:
About a month ago, the California Supreme Court, in a 4-3 decision, issued a declaratory opinion that Proposition 22, which states that, "Only a marriage between a man and a woman is valid and recognized in California," enshrined into statutory law by 61.4% of California voters in 2000 (over four million voters), was "unconstitutional" on the basis that "gender discrimination" violates the equal protection clause of the state constitution.

The LA Times reported:
"The California Supreme Court struck down the state's ban on same-sex marriage Thursday in a broadly worded decision that would invalidate virtually any law that discriminates on the basis of sexual orientation."
Sadly, many of the leading "conservative" and "Christian" pro-family organizations such as AFA (American Family Association), Liberty Council, ADF (Alliance Defense Fund), FRC (Family Research Council), ACLJ (American Center for Law and Justice) and Focus on the Family have been in full surrender mode conceding this same liberal talking point that the court "legalized same-sex marriage in California" and that the only way to ensure preserving traditional male-female marriage is through a state constitutional amendment scheduled to be on the ballot in November.

The California Supreme Court issued a declaratory opinion that, in the view of the bare majority, banning same-sex couples from marrying was unconstitutional and that the language of the initiative statute limiting marriage to one man and one woman must be stricken from the statute. Unfortunately however, the court doesn't have the constitutional authority to re-write the marriage statute nor any other initiative statute for that matter. According to the California Constitution, only the people can revoke or amend an initiative statute such as Prop 22. Same-sex "marriage" remains, therefore, illegal.


Nemo dat quod non habet, ("You cannot give what you do not have.") In other words, the California Supreme Court cannot give to the Legislature, what neither it, nor the legislature, has: the power to overturn the people's initiative legislation. No branch of government, even the branch that claims to be the final arbiter of a Constitution can gain legal authority which it does not possess. To claim then "the court legalized same-sex marriage" by "striking down" the people's initiative statute limiting marriage to one man and one woman has absolutely no constitutional basis.

Governor Schwarzenegger has violated his sworn oath to uphold the California Constitution to only enforce the current laws and statutes of the state of California by illegally authorizing changes [http://www.worldnetdaily.com:80/index.php?fa=PAGE.view&pageId=65755] to, and issuance of, marriage certificates to same-sex couples.

Like former Massachusetts Governor Romney before him, Governor Schwarzenegger has falsely asserted that the court's opinion, containing no valid or enforceable court order, "legalized same-sex marriage" and that it is his obligation to enforce the "court's decision." Romney illegally authorized [http://www.undergroundjournal.net/igroops/theunderground/adminpages/Letter-To-Romney-JAN-07] the Department of Public Health to change the marriage certificates from "husband" and "wife" to "partner A" and "partner B" and ordered Town Clerks and Justices of the Peace to perform and solemnize same-sex "marriages," or tender their resignation (which one did), without an accompanying statute approved by the legislature.


Since courts lack the authority to enforce their own opinions and cannot make law, they can only be considered "activist" when the executive branch enforces their opinion as if it were the "new law." While a bare majority of four members of the court no doubt issued an illegal opinion and should be impeached for doing so, Governor Schwarzenegger alone authorized the issuance of the illegally altered marriage certificates. Executive tyranny, not "judicial activism," is what occurred in California (and Massachusetts).

The bottom line is this: Same-sex "marriage" is not legal anywhere in the United States of America from Massachusetts to California. Now if only somebody would explain this basic legal concept to our superstar "conservative" leaders, lawyers, and radio-pundits who incessantly swear that it is.
(Read the full article.) Now if only we could get some elected officials to show a spine and actually side with the people who put them into office. But it sure is too bad that Romney is not the Republican nominee. Who wouldn't want a Republican who proved by his record to support gay marriage, abortion, and socialized medicine?

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