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October 6, 2006
A Rare Victory For Judicial Modesty

The California appellate court has denied an attempt to overturn the state's "one man, one woman" rule on marriage through judicial. In an unfortunately remarkable decision, they upheld an appeal on an earlier decision by a San Francisco judge overturning the law, and told the plaintiffs from the original case that the judiciary cannot create new rights:

In the latest turn to a long and winding legal fight over same-sex marriage, a California appeals court on Thursday upheld the state’s ban against it.

The 2-to-1 decision, which reversed a lower court’s finding that the ban violated the California Constitution, said the plaintiffs in the case were asking the courts “to recognize a new right,” a step it said only the Legislature or the voters could take.

“Courts simply do not have the authority to create new rights,” said the decision, written by Justice William McGuiness, “especially when doing so involves changing the definition of so fundamental an institution as marriage.” ...

In April 2005, Judge Richard A. Kramer of San Francisco County Superior Court ruled that limiting marriage to people of the opposite sex impinged on a fundamental right to marry, and declared the ban unconstitutional.

Like previous decisions, Judge Kramer’s ruling was immediately appealed. It was this appeal that led to Thursday’s decision.

We may be seeing a fundamental shift in judicial temperament occuring in the US. For decades, we have watched as judges arrogated the power of legislation to the bench, essentially passing new law without any involvement of elected officials. The nadir of this movement came in Massachussetts last year, when their state Supreme Court ordered the legislature to allow for gay marriage, and the intense political backlash has apparently had an effect.

How so? Several states saw grassroots efforts after the Massachussetts decision to amend state constitutions to put the question outside of the judiciary. It didn't just affect same-sex marriage, either. Other efforts, such as the federal effort to ban flag-burning, had their Constitutional approaches affirmed by the Massachussetts court's action. Judges began to realize that their arrogant actions would force legislatures and voters to use constitutions as substitutes for penal codes, making it far more difficult for them to exercise any kind of oversight over the other two branches of government.

The admission of any court that the judiciary has no authority to create new rights amounts to headline news. When that court operates in California, where referenda routinely get overturned by the courts, it means even more. The age of judicial activism may have ended, and a new age of judicial modesty may have arrived.

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Posted by Ed Morrissey at October 6, 2006 5:11 AM

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» Alliance Defense Fund Strikes another blow against the ACLU from Revealing The ACLU
You may remember backing February of 2004, the Mayor of San Francisco and a county clerk issued “pseudo marriage licenses” to same sex couples, despite existing statutes prohibiting such. The California Supreme Court then ruled the that Mayor had a... [Read More]

Tracked on October 6, 2006 6:59 AM

» California Court of Appeal - No Right to Gay Marriage from damnum absque injuria
Via Justin Levine (the high profile radio producer Glenn Douchewald describes as an obscure right wing blogger), the California Court of Appeal has overruled the kooky district court ruling finding a “right” to gay marriage hidden in the em... [Read More]

Tracked on October 6, 2006 9:11 AM

» JUDICIAL RESTRAINT from Word Around the Net
On occasion, you read news that is heartening, that gives one hope for the future. In California, a state Appeals Court made a great ruling for a great reason yesterday: [Read More]

Tracked on October 6, 2006 1:09 PM


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