I am attempting to persuade a federal court to invalidate California's Proposition 8 -- the voter-approved measure that overturned California's constitutional right to marry a person of the same sex.
Today, the state constitution reaffirms what the people of California had previously affirmed in statutory law less than ten years earlier. The marriage amendment reaffirmed what has been the will and understanding of the people for the entire history of California: marriage is the union of a man and a woman.
A slim majority on the CA Supreme Court tried to overturn all of that by concocting a right to SSM. Their error was short-lived. Their mischief-making in the brief interim has had a longer afterlife.
The people of California, by their approval of the marriage amendment, restored the status quo ante and clarified that there is no state constitutional right to SSM. It did not exist prior to the statutory affirmation in 2000. It did not exist prior to nor after the high court's intrusion. It certainly does not exist subsequent to the adoption of the marriage amendment, which made explicit in the state constitution what had already been explicit in the marriage statute and previous marriage laws.
In contrast, the California high court pressed into the state constitution something that simply does not appear in the text of the state constitution. And in doing that, the court's 1-vote majority opinion provided a vague description of SSM which does not actually differentiate it from the rest of the nonmarriage category of relationships and arrangements. This shows that the brief imposition of the SSM merger with marriage was an arbitrary exercise of judicial authority.
Olson's own remarks in his Newsweek article reveals this to be the case. What's more, there is no conflict between California's marriage amendment and the federal precedents and federal understanding of marriage. Across the country marriage is the union of a man and a woman. The California Supreme Court had made a localized error that has been corrected and which does not provide the basis for reviving that localized error and compounding it into a nationalized error imposed on all of the country.
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More to come.
Previously: Answering Olson's pro-SSM argument.
Return to "Answering Ted Olson: Updates."
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