King George Wears a Black Robe

The critical question in the 4-3 decision of the California Supreme Court to require homosexual marriages in that state is not whether that is a better policy. It is, who should decide that question? The majority said that this was a “good” policy, and they would therefore require it. The minority said that the court had no business making that decision.

Back up a little bit. Like almost all states, California had a statute which defined marriage as involving “one man and one woman.” Not two men. Not one man and four women. Not a man, a woman, and a sheep dog. Just one man and one woman. There was no doubt that the people of California approved of that law, because they passed it in a referendum in 2000 with an approval rate of 61.4%

This is not to suggest that states without the referendum (half of them) less express the will of their citizens when their elected representatives pass such laws on their behalf. Legislators, after all, face the voters in elections. And if the voters are really unhappy with what their legislators have done, they can summarily retire them from public office.

Back up a little more. What were we taught in civics class in the 10th or 11th grade? The government of the United States has three branches: legislative, executive and judicial. Each have specific purposes. None are supposed to steal (”usurp” was the old-fashioned word) the functions of the other two. And each had “checks and balances” against the others in case the others got out of line.

What was the function of the legislative branch? Let’s not always see the same hands. Yes, Sally? “The function of Congress is to write the laws on behalf of the people.” Very good. Now if you live in California, what is the function of its legislature? “California’s legislature writes the laws for the people of California.” Good, Sally.

What is the function of the judicial branch? Yes, Johnny? “The judges are supposed to enforce the laws when people break them.” That’s part of the answer. The other part is what’s called the “civil” law. To provide damages for citizens who’ve been harmed by other citizens.

Back up a lot. Why does the United States of America exist in the first place? Yes, Tommy Jefferson? “King George of England was a tyrant. But government derives its just powers from the consent of the governed. I wrote that in my copy book.” Very good, Tommy. Save that. You might have a use for those words in 1776.

Why do federal judges and most state judges not face elections? This one is a toughie. Yes, Jimmy Madison? “Judges are appointed for life and don’t face elections so they will have the independence to decide each case as it requires. But judges should never inject their personal opinions into their decisions.” Good, Jimmy.

Tommy, no need to be so vigorous in waving your hand. I see you. Go ahead. “The federal judges are the most dangerous branch because when they seize power that belongs to the other branches, they will never give it up.” Tommy, your logical abilities are far beyond the average 12-year-old. Hold that thought. There’s going to be a United States of America some day, and in a couple centuries, the citizens may need to consider what you just said.

No state has passed a statute permitting homosexual marriages. Two states, Massachusetts and California, now have that provision because a one-judge majority on their highest courts, forced the issue and rewrote the laws. So far, the Massachusetts legislature has prevented a citizen petition to restore its marital law from going on the ballot. In California, such a petition will go on its ballot this fall, to write the subject into the California Constitution and put it beyond the reach of its Supreme Court.

Some might think it trivial to reduce such an important subject to a teacher in a class of 12-year-olds. But the subject really is so simple that a young child can understand it. It only becomes complicated when sophists get a hold of it, whether they are lawyers who disrespect the Constitution and the will of the people, or worse, lawyers in black robes who sit on the bench and disrespect the Constitution and the people.

Read what the Declaration of Independence says about the abuses from King George III. Ask yourself whether we are any better off if the same type of abuses are caused by American judges who wear black robes and carry gavels rather than crowns. I say we’re back to square one. What do you say, Tommy? Jimmy?

About the Author: John Armor has spent almost 40 years working with all branches of the federal government, plus state and local officials. He lives and works on a mountaintop in Highlands, NC. John_Armor@aya.yale.edu

Since it was a state court, deciding on state law (apparently), there's no appeal to the US Supreme Court.

Of course one could always appeal to Bush v. Gore, if one were willing to risk a contempt of court citation! LOL

The only argument I can see, and it's a stretch, is that the California judges violated the US constitutional guarantee that each state should have a “republican form of government.” That means government by elected representatives, rather than unelected dictators.

I think that a perfectly valid point - but not one that is likely to be sustained by a court, I suppose . . . since SCOTUS as an institution likes to maintain the fiction that there is no such thing as judicial activism.

the subject really is so simple that a young child can understand it. It only becomes complicated when sophists get a hold of it, whether they are lawyers who disrespect the Constitution and the will of the people, or worse, lawyers in black robes who sit on the bench and disrespect the Constitution and the people.

sophist 1542, earlier sophister (c.1380), from L. sophista, sophistes, from Gk. sophistes, from sophizesthai "to become wise or learned," from sophos "wise, clever," of unknown origin. Gk. sophistes came to mean "one who gives intellectual instruction for pay," and, contrasted with "philosopher," it became a term of contempt. Ancient sophists were famous for their clever, specious arguments.

philosopher O.E. philosophe, from L. philosophus, from Gk. philosophos "philosopher," lit. "lover of wisdom," from philos "loving" + sophos "wise, a sage." "Pythagoras was the first who called himself philosophos, instead of sophos, 'wise man,' since this latter term was suggestive of immodesty." [Klein] Modern form with -r appears c.1325, from an Anglo-Fr. or O.Fr. variant of philosophe, with an agent-noun ending. . . .

Ahh, but the good news is that California’s judges, even those on the Supreme Court, do face re-election races, as Rose Bird learned so well. Perhaps another recall drive is in order.

Apparently it wasn't literally a recall; CA judges have to be reconfirmed by the voters - and Rose Bird was the first one to fail of reconfirmation.

Was the California Supreme Court wrong in 1948 when it struck down the law banning interracial marriage?

Well according to McCain it would be a state issue. At least that is his position on Gay marriage. He is still opposed to a constitutional amendment to define marriage.

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