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Monday, May 19, 2008

Gay marriage decision came from a tyrannical court

By Dennis Byrne
Chicago Tribune

Before everyone drops into a deep swoon over the California Supreme Court's decision "allowing" gay marriages, it might be worthwhile to read the entire 121-page decision to discover that it changes, well, practically nothing.

California already has extensive laws granting same-sex couples virtually the same rights as opposite-sex couples. The 4-3 majority recognized that fact but said the "substance" of the laws didn't really matter. "The question we must address is whether . . . the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution." Our task, the majority said, is "only to determine whether the difference in the official names of the relationships [is unconstitutional]." It is unconstitutional, the majority concluded, because applying the term "marriage" only to the legally sanctioned relationship between opposite-sex couples denies the "dignity and respect" that should be accorded to same-sex couples. The solution, according to the majority, is to strike down a law that says "marriage" certificates can only be given to opposite-sex couples. Whatever the legal relationship is called, the legislature will have to create a name that is the same for same-sex and opposite-sex couples. This fight is about a word. And whether it is "disrespectful" to apply it to one group and not another.

That such a decision came out of California is unsurprising; the only question was just how curious, obtuse or laughable would be the logic in overturning the will of the nearly two-thirds of California voters who passed the law in a referendum.

The majority didn't disappoint. It's difficult to try to reduce its logic to one sentence, but here goes: The legislature provided equivalent rights to same-sex couples by passing strong domestic partnership laws, so the citizen-initiated and approved ban on same-sex marriages had to go.

A dissenting justice, Carol A. Corrigan, said while her sympathies were on the side of gay marriage, she could not "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."

On second thought, this isn't so funny; it's scary.

The majority declared that people had no say in the matter. It said that, in its supreme wisdom, it could overrule a constitutionally created process for the people of California to directly exercise their will. The court proclaims its view is so fundamentally correct that it cannot be "abrogated by the legislature or by the electorate through the statutory initiative process." In other words, the people of this state are not supreme.

Let's think about that for a minute. The court is saying that some rights are so fundamental that they cannot be voted away by a majority, or even a supermajority, of the citizens or their representatives. That the court in its wisdom knows and can define what these rights are, and order them enshrined into law despite overriding public opposition.

This isn't a new judicial philosophy; its roots go to a fundamental debate over how to protect the minority's rights from the tyranny of the majority. It is why the federal and some state courts are insulated from the popular will by various means; they are appointed, not elected, and serve for life.

It is a proper and well-established role for a supreme court. It is how a U.S. Supreme Court led America into ending legal racial discrimination.

But another essential and fundamental feature of American democracy is the system of checks and balances, to protect against such things as the tyranny of an unaccountable, unresponsive and even rogue branch of government. The founders were determined to avoid any branch of government taking on the mantle of a King George III.

The answer, of course, is that we can overrule any of the three branches of government by amending the Constitution because it is, after all, the people's Constitution, not the court's. It is the people's ultimate check on the imbalance of power.

Thankfully, such a move is under way in California where hundreds of thousands of citizens have petitioned for a constitutional amendment banning same-sex marriage, thus putting it out of reach of an autocratic court. Now comes the scariest part: One of the many supporters (I didn't get his name) of the court decision interviewed on television was asked what would happen if the people approved a constitutional amendment defining marriage as only between a man and a woman. Would the court go so far as to overturn a provision of the Constitution itself? "I don't know. I hope so," he said.

By which we are provided a window into the mind of a tyrant.


deathdrive83 said...

If you think the judiciary is being a "tyrant" every time it overrules the will of the majority, you don't really understand our system of government. We're not a purely majoritarian system and if you glanced at the Federalist Papers, you would understand why. When the courts desegregated schools and outlawed anti-miscegenation laws, they were acting against the will of the majority because the democratic process had become infected and it was necessary for the courts to police it. This decision is no different and, years from now, your hyperbolic cries of "tyranny" will be seen for the joke that they are.

Anonymous said...

Leave it to Dennis Byrne to become outraged about trivial “tyranny.” (Gay Marriage Decision Came From Tyrannical Court). Just how is anyone’s life negatively affected by this decision? On the other hand, there is some real tyranny going on in America. Bush’s war continues, despite the opposition of the vast majority. Our President thinks he can imprison people without trial—and torture them to boot—as long as you call them “terrorists.” Of course, this all began when the US Supreme Court imposed the Presidency of George Bush on the nation in the first place. Mr. Byrne has yet to speak up about that tyranny—and I’m afraid he never will.

Jen Roberts

Anonymous said...

Dennis Byrne is truly the master of the red herring. At a time when we are suffering through the last months of the most lawless administration ever, Dennis alerts us about a tyranical California supreme court that (gasp!) says that gay unions ought to be called "marriages" just like heterosexual marriages. Some people in California, whipped into a frenzy by religious leaders who are similarly invested in distracting people from what really matters, are now going to pursue a constitutional amendment to overturn this decision. Doubtless, their lives and their children's lives will be irreparably harmed if this decision is allowed to stand.

T.J. Sampson

Ted said...

Your classification of the Court's opinion "in a sentence" was a joke. Let me give you a better classification, since I also read the opinion, and have a background in the law.

Marriage is a fundamental right conferred upon the people of California by its state constitution.

Gay people are being denied that fundamental right.

Equal protection demands that you can't deny people a fundamental right.

Courts overturn the will of the majority all the time. They did so in Brown v. Board of Education. They did so in Lawrence v. Texas.

By your rationale, if 61% of the people were in favor of re-internment of the Japanese in California, that the Court should not be able to stand in their way. That is complete and unadulterated nonsense.

You acknowledge that the Court's role is to protect the minority from the tyranny of the majority by enforcing rights conferred by the constitutions, as they did with racial discrimination. Then you bash the CA Court for doing the same thing when it comes to sexual orientation. Your article makes no sense.

The people of California have the opportunity to amend their Constitution, and that's a good thing. It is well within the rule of law, as is what the justices (six of seven were nominated by Republicans) did. That's the beauty of our democracy.

Keep in mind though that the US Constitution also has an equal protection clause. It's not going to happen with the current make-up of the Supreme Court, but the SCOTUS could make the exact same decision because marriage is a fundamental right under the US Constitution, as enumerated in the Zablocki case. And in that case, amending the US Constitution will be far harder to do than the CA one is.

Anonymous said...

Thanks for the article, which I thought was pretty good. This California decision was very undemocratic and even evil.

Charlotte said...

Marriage is a basic civil right that should be attainable by all Americans if they choose. For those who are uncomfortable with this check out our short produced to educate & defuse the controversy. It has a way of opening closed minds & provides some sanity on the issue:

Anonymous said...

Byrne conveniently "forgets" to mention that of the seven justices on the California Supreme Court, six are Republican appointees. Byrne, who, to my knowledge has no legal training whatsoever, disagrees with the court's ruling and thereby declares it "tyrannical."
He then laments that the court has based its decision on the state's Constitution, rather than bowing to the will of the people. Of course, if it had been left up to the will of the people, the laws prohibiting interracial marriage in this country would never have been overturned by the Supreme Court Of The United States.

Richard said...

Tell me Dennis, would you also call the Supreme Court's rulings in Brown v. Board of Education (school desegregation) and Loving v. Virginia (interracial marriage) "tyrannical"? Both of those decisions were extremely unpopular at the time. No one can dispute they went against the will of the people. Those justices who wrote those opinions would certainly be called "activist judges" by today's standards. But "tyranny"?

In California the legislature passed a gay marriage bill not once, but twice. Gov. Schwarzenegger refused to sign it, saying he would leave the decision up to the courts. Guess you would call him a tyrant too.

Anonymous said...

Mr. Byrne, I feel sorry for you. How can a seemingly rational adult have his judgment so clouded by what I can only surmise is pure bigotry that he sees justice and equality as tyranny? Your article conveniently does not mention that the California state legislature--that other branch of government you seem to have forgotten about, the one that is the voice of the people speaking through their elected representatives--has not once but TWICE in the last four years passed legislation allowing same-sex marriage in California only to have it vetoed by a single man, Governor Schwarzennegar. Passing legislation is a rigorous process, with officials held accountable for what they do and don't do. Both of these legislative attempts to bring equality have happened much more recently than the 2000 vote by the people, which at 61% and being eight years old is hardly as compelling as you imply. (Aside from the fact that the people are not above poor judgment; if they voted to bring back slavery would you favor that too?) No, I think your self-serving article is not about justice. It is about prejudice: yours toward gay people. You seem to under the illusion that the judicial branch only wields its power and authority properly when their decision suits your personal taste. Who's the tyrant here? The California Supreme Court's authority in this particular case was to interpret existing Constitutional law, which is exactly what they did. And as for that possible vote this November to amend the California Constitution? My prediction is that if it comes to that, like your bigoted way of thinking and your selective memory when it comes to journalistic integrity it will go down in sad, pitiable flames.

Anonymous said...

Headline - you justified the court in its decision (based on legal precedent with interracial marriage, Loving v Virgina) but you were only able to identify one potential tyrant who hasn't even made action. You're headline is extremely misleading and you are full of hyperbole sir.

Jefferson said...

I agree with 'ted' and 'richard'.

Byrne, you must not have read the courts decision with an open mind, and rather with your predisposition to not agree with it.

Thankfully, your 'opinion' is not counted here in California.

Anonymous said...

Why are Dennis Byrne and the right wing so intent on inciting hatred of gays (Gay marriage decision came from a tyrannical court)? Byrne admits the California Supreme Court’s decision he calls "tyrannical" did very little. The decision was about a name--and respect for gay marriage. The court simply ruled that a law was incompatible with the California constitution. While Byrne may disagree, supreme courts do this all the time. Byrne also quotes an unnamed person, who, in his ignorance of the law, said that the court ought to overrule a proposed constitutional amendment aimed at overturning this ruling. Supposedly, this shows supporters of gay marriage are scary tyrants." Byrne wrote a foolish article about nothing. Perhaps Byrne knows that unless people are distracted by nonsensical hatred, they might notice what Republicans have done to America.

Anonymous said...

has not once but TWICE in the last four years passed legislation allowing same-sex marriage in California only to have it vetoed by a single man, Governor Schwarzennegar.


Charles said...

You just don't get it. For 225 years the US Supreme Court has allowed the Christian church to be the established religion, in violation of the constitution. How do I know it's the established religion? It's the one that gets to put it's advertising on the court room walls and the entire money supply, it gets to say who can get married and who can't and it even tells you how to die; you are not allowed to hurry the process and of course you can't be high when you go to meet your maker.
If you ask me the courts that overturn these laws are not 'activists' they are actually guilty of sloth and incompetence. An established religion has been unconstitutional for 225 years and they are finally starting to get it.
I suppose it's not surprising that folks get mad, the courts have been wrong on this type of issue for so long everyone expects them to make excuses for unconstitutional laws like they have always done - and will continue to do for the foreseeable future.
So don't be sad - religion has had a 'good' run - how about now we try reason, logic and the constitution?

Anonymous said...

Would we call the court tyrannical if, in a hypothetical situation, it overturned a citizens' initiative to deny Christians access to marriage? Short people? People with the last name Byrne?

Dennis does not acknowledge that there are times -- often many times -- the court should step in to keep a majority from infringing on the rights of a disliked minority. This is one of those times.

If we do not support the court when it stands up for the rights of others, who do we turn to when we ourselves become the victim of majority will?

Dennis Byrne said...

I wish some of you would have read the entire column before posting. What I was trying to point out that while it is the court's role to protect against a mistaken majority, sometimes the people need to be protected from a mistaken court. The solution, and the proper check on the court, is the amendment process to the constitution.

Anonymous said...

"What I was trying to point out that while it is the court's role to protect against a mistaken majority, sometimes the people need to be protected from a mistaken court. The solution, and the proper check on the court, is the amendment process to the constitution."

Only your opinion that the court was "mistaken". Using your logic, the states of Alabama, Missisippi, Georgia, etc., would have been and still been OK if they passed an amendment to bring back slavery, segregation and the outlawing of mixed marriages. Because most of the people in those states would say that current laws are "mistaken". That seems to be OK with you.

How is Gay marriage affecting your life?? None of your business. Just like the old sodomy laws.

Write about some real issues like the lies that brought us into Iraq. Those WMDs that Cheney knows where they are. The Supreme Court that voted totally against its past principles and votes to put Bush in office, etc., etc., etc. You are a total and completely intolerant right wing bigot. And that is not just an opinion. It shows with every article you publish.

Hal From Highland Park, IL

jojopuppyfish said...

I am not a lawyer, but I read the opinion and its clear to me:
An amendment to the CA constitution will conflict with what Blogger Ted has written.
To reiterate, CA supreme court say that if you allow marriage, you allow it to everyone.

I have a different question.
Why does the government saction marriages at all? Shouldn't it be a religious event? Guess they like collecting fees.

Anonymous said...

Mr. Byrne--to the extent that you intended to only point out the "solution" and "proper check on the court," ie, the amendment process to the constitution, what is the point of your piece: stating the obvious? Also, regarding your simplistic view of the CA decision being about a word, don't you know words matter? See U.S. Const.

Anonymous said...


We did read your article. It was a silly article...much ado about nothing. Clearly, your marching orders from Rove are to mobilize the religious right by waving the Gay flag at them. Disgusting.

deathdrive83 said...

You're back pedaling because you've realized that you can't support your premise (that the court was tyrannical). If there is a check in the form of an amendment, how is the court tyrannical for playing its appropriate role in the political process? Is Congress tyrannical every time it passes a law that the President has not vetoed yet? Do you even think before you post this nonsense?

Eric said...

Personally, I think the courts have gone to far to protect the rights of "the press" to use the Internet. Obviously since the U.S. Constitution used the word "press," it means that printed words are protected. There is no protection of electronic words. Now if I can just get 51% of the people to agree with me, you wouldn't be worrying about the "tyrannical" court, would you?

Danny said...

We live in a constitutional democracy. It is for the state Supreme Court to interpret the state constitution. The California Supreme Court has discharged its constitutional duty. The question is not whether we like it or not. If you prefer direct democracy over a constitutional democracy you may want to consider a move to Switzerland. Californians have a great Constitution and we should celebrate our constitutional court. I think we will surprise the rest of the country by defeating the constitutional amendment and protecting our constitution from out-of state whining and meddling. Californians love to be ahead of the time and we have the most respected state supreme court, 6 of the 7 judges were appointed by Republicans. Our Republican Governor supports our State Supreme Court. God bless California!