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Bench Memos

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The Ninth Circuit’s Attack on Self Government



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It is no surprise that the most liberal court in the nation has upheld the most activist decision to date inventing a new constitutional right to same-sex marriage. The court’s reasoning is yet another example of the one-way ratchet activist judges use to secure constitutional protection for their favorite causes. The Ninth Circuit held that, once the uber-liberal California Supreme Court determined that the 150-year-old California state constitution should be read to include a right to same-sex marriage, the people of California were now prohibited from amending their own constitution to check that ruling.  

This ruling effectively says that any attempt by the people of California to check their state courts’ liberal activism violates the United States Constitution. That proposition is not only legally laughable but is constitutionally backwards and may be the most serious attack on self government since the era of poll taxes and literacy tests. They have not only disenfranchised those who are poor or Black, they have effectively disenfranchised an entire state’s citizenry.

Here’s how the one-way ratchet works in today’s opinion. Once a state has changed its law to allow same-sex marriage, then changing the law back becomes a “distinct constitutional violation” by “strip[ping] same-sex couples of the right to have their committed relationship recognized by the State with the designation of ‘marriage,’ which the state constitution had previously guaranteed them.” For the Ninth Circuit it didn’t matter whether same-sex marriage was the law in California for an hour, a day, or a year. It didn’t matter whether it was legalized via judicial fiat rather than legislatively or by a referendum of the people. It didn’t matter that the California Supreme Court acknowledged that the right itself was novel. Once there, it never can be eliminated. Not by the California Supreme Court reconsidering its own discovery of the right. Certainly not by the California legislature. And now not even by the people amending their own state constitution.

The powers reserved to the states and the people by the Tenth Amendment mean very little if the people do not retain control of their own state governments. It would be different if the U.S. Constitution mandated same-sex marriage; then states could not block a constitutional right. But this is not the case, and the Ninth Circuit does not even purport to claim that it is.  

The court simultaneously works both sides of the designation of “marriage” — it is both “narrow” and “limited” to the terminology used, and of “extraordinary significance” because of the “significant symbolic disparity between domestic partnership and marriage.” While emphasizing that marriage is just a word, the court characterizes proponents of Prop 8 as mean-spirited bullies who want to deny homosexuals a practically meaningless phrase. While opining about the “official, cherished status” of marriage (relying on experts ranging from William Shakespeare to Frank Sinatra and Groucho Marx) the court suggests that words, in fact, can hurt you.

In the bizarro world of the Ninth Circuit, marriage is at once nothing and everything. The unelected California Supreme Court can singlehandedly invent new constitutional rights, but the people cannot use the proper amendment procedures to amend that same constitution to restore its original meaning. And once a state takes a step to the Left, it can never go back.



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