The California State Supreme Court, lead by Chief Justice Ron George, repealed California law stating that marriage is between a man and a woman as set forth by both the Legislature and the people through the passage of Prop. 22.

The Court’s ruling is breathtaking for its overreach.  Using words like “dignity” (23 times), “liberty” (34 times), and “privacy” (37 times) to describe same sex partners full right to marry, the Court overturned millennia of experience and more than 150 years of state law precedence.  (For the ruling, see: http://www.courtinfo.ca.gov/opinions/documents/S147999.PDF.)  In so doing, their strained justifications threw the door wide open to polygamous and incestuous marriage.  How?  By using the flawed logic that marriage is none of the government’s business insofar as marriage should be afforded to all to afford people privacy, liberty and dignity.  The same weak logic can be applied to the “plural” marriages of the Fundamentalist LDS cult in Texas or to a devout Muslim citizen of Saudi Arabia who wishes to emigrate to California with his four wives.  In fact, due to the equal protection provisions of the Fourteenth Amendment, both a Fundamentalist LDS cult member and a devout Muslim could argue that their First Amendment right to free exercise of religion are being violated by any restriction on polygamy – after all, their “dignity,” “liberty,” and “privacy” would be violated otherwise. 

Allow me to close my comments with two political observations. 

First, the Court’s sweeping ruling is likely to ignite support for the California Marriage Protection Act, a constitutional ballot initiative that would overrule the Court’s decision that should appear on the ballot this November. (See: http://www.protectmarriage.com/.)  This, in turn, may have an impact on other California races, from the President on down to the legislative races.  In this, liberal Democrats should be wary of what they wish for…

Second, I find it ironic to see commentators describe the Court as conservative since the majority of its members were appointed by Republican governors.  Lest we forget, there is a simmering divide in the Republican Party over whether the label “conservative” includes social policy, or only tax and fiscal policy.  Chief Judge Ron George was first appointed by Gov. Deukmejian, then appointed chief justice by Gov. Wilson.  Justice Ron George has had a long history of very liberal rulings long before the same sex marriage ruling.  In fact, back in 1997, I drafted a resolution opposing Justice Ron George for his election in 1998.  It passed the Orange County Republican Party Central Committee, then stalled when it hit the California Republican Party.  It was argued that Justice George was a Republican, so the Party should support him.  The reason for my opposition to Judge George in 1997 was his ruling in American Academy of Pediatrics v. Lungren which overturned a California law requiring parental consent for minors to obtain abortions (“privacy” of the minor girl was the reason cited in that case too).  Other bad rulings already made by Justice George at that time included: a pro-criminal decision in People v. Superior Court (Romero), three anti-private property rights decisions in Ehrlich v. Culver City, Smith v. Fair Employment and Housing Commission, and Alcarez v. Vece, a pro-public union decision in Loder v. City of Glendale, and an anti-business decision in Stevenson v. Superior Court. 

Of course, there is the remote possibility that Judge George’s terrible ruling really is a Republican plot in the vast right wing conspiracy to boost conservative turnout so much that McCain wins California and is elected President in 2008 – stranger things have happened in the world of politics. 

Just for old time’s sake, I’ve reprinted below the 1997 resolution that passed the OC Republican Party Central Committee only to fail at the California Republican Party convention.  It was authored by me and my long time friend, Fred Whitaker, a respected Orange attorney who should someday be on the California Supreme Court. 

A Resolution Calling to Oppose Confirmation of Certain California Supreme Court Judges.

WHEREAS, The California Supreme Court overturned a 1987 law requiring parental consent for minors to obtain abortions.

WHEREAS, The law in question was a carefully written to meet the U.S. Supreme Court’s strict guidelines for valid parental consent legislation.

WHEREAS, Chief Justice George, Justice Chin, Justice Kennard, and Justice Werdegar ruled that the parental consent law violated the “autonomy privacy rights” of minor girls.  Further that a minor girl’s uninhibited right to an abortion “is so central to the preservation of her ability to define and adhere to her ultimate values regarding the meaning of human existence and life,…we conclude that a minor who is pregnant has a protected privacy interest under the California Constitution in making the decision whether to continue or to terminate her own pregnancy.” Yet, almost a year earlier, the court ruled that the same law was valid.

WHEREAS, Lower courts in California blocked enforcement soon after its passage in 1987, claiming that girls as young as 13 or 14 possess the necessary maturity and rationality to make informed decisions about abortion.  Yet, under the law do not have maturity and rationality for ear piercing and medical treatment without parental consent until age 18.

WHEREAS, These arguments, aside from ignoring common sense and human experience, are irrelevant to the issue of constitutionality which is supposed to be the only reason for the court to overturn legislation.

WHEREAS, A parent’s right to direct his or her child’s upbringing is among the most basic of human rights.

WHEREAS, Justice Mosk, in dissent, pointed out that according to the ruling, the privacy rights for minor girls would reach to those who were as young as nine years old.

WHEREAS, Justice Brown, noted in her dissent that the California Constitution protects “a parent’s interest in directing his child’s upbringing” and that the “liberty interest of a minor is qualitatively different than that of an adult, being subject both to reasonable regulation by the state and to an extent not permissible with adults.”

WHEREAS, It is illogical and inconsistent to require that minors obtain parental permission for aspirin at school, tattoos, tanning salons, body piercing, drivers’ licenses, etc., but not for a dangerous and invasive procedure like an abortion.

WHEREAS, This Court’s judicial activism is reminiscent of the Rose Bird Court when, the rule of law in California succumbed to the whim of four justices occupying seats on its highest court.

THEREFORE, BE IT RESOLVED that the California Republican Party joins the Republican Party of Orange County in calling upon itself and all those of good will to actively oppose confirmation for any California State Supreme Court Justice who voted to overturn the 1987 law requiring parental consent for minor girls to obtain abortions.

Cosponsors:
Fred M. Whitaker, Member
Chuck DeVore, Member

Tags: abortion, California State Supreme Court, same-sex marriage, traditional marriage

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