Thursday’s 4-3 decision in the California supreme court that the state’s constitution mandates a radical redefinition of marriage had its genesis in executive lawlessness and ended with judicial overreaching.

The decision was handed down in a case that began in the aftermath of the decision of the mayor of San Francisco to offer marriage licenses to same-sex couples in contravention of state law; a law enacted by voters in March 2000. When the California supreme court said the mayor did not have the right to unilaterally decide the validity of state law, it also allowed the mayor’s argument that the marriage law was unconstitutional to be tested in a lower court.

That court agreed with the city of San Francisco and activist groups that defining marriage as the union of a man and woman was irrational, and thus unconstitutional, but the court of appeals reversed. Thursday, the state supreme court weighed in and agreed with the advocates of marriage redefinition.

The majority distinguished its holding from the string of recent state appellate decisions rejecting a constitutional right to same-sex marriage by noting that California has enacted laws to give all of the benefits of marriage to same-sex couples (an idea endorsed by the contenders for the Democratic presidential nomination). The issue, for the justices was thus whether the difference in name between the two statuses (marriage or domestic partnership) violated the constitution.

The majority believed that difference was unconstitutional because it constitutes “significantly unequal treatment,” and could be understood “as a mark of second-class citizenship.” The court added the novel argument that the right to privacy “would protect an individual from having to disclose his or her sexual orientation” but the separate status would require divulging orientation and “expose gay individuals to detrimental treatment by those who continue to harbor prejudices that have been rejected by California society at large.”

The court concluded, contrary to all precedent, that “sexual orientation” deserved the kind of constitutional protection afforded to categories such as race and sex. The court could find no compelling interest “in retaining a tradition that excludes an historically disfavored minority group from a status that is extended to all others.” A footnote undercut this assertion that “all others” are entitled marriage. The footnote said the decision would not extend to polygamists or those interested in incestuous marriages.

In answer to criticisms from the dissenting justices, the court justified its invalidation of a state law in place through all of the state’s history and reaffirmed by initiative in 2000 by saying the provisions of the state constitution “constitute the ultimate expression of the people’s will” and “represent restraints that the people themselves have imposed.”

This is true as far as it goes, but a right to one’s own definition of marriage is not among the provisions of the constitution. It is only the assertion of four judges, and judicial policymaking is not a valid “expression of the people’s will.”

One of the dissenting justices, who expressed personal support for the idea of same-sex marriage, accused the majority of breaking the “covenant” between the court and the people inherent in the principle of judicial restraint. She noted: “It is no answer to say that judges can break the covenant so long as they are enlightened or well-meaning.”

Thanks to the foresight of pro-marriage groups, the people of California will still get to have the last word on the proper interpretation of the state’s constitution when they vote on a marriage amendment in November. This amendment will be their chance to answer this affront to marriage and self-government by invalidating Thursday’s misguided decision. 

– William Duncan is director of the Marriage Law Foundation.