I thought I should let you know that I have a new project in the works.  I've just started a new site over at http://judgeright.wordpress.com
You can see some of my older work at http://judgeright.blogspot.com which has been essentially abandoned and of course, this VOX site is the one I've been most active on lately.  If this project works, I hope to have started a small, knowledgeable community of nine justices to discuss current events in the news.  A self appointed think tank to judge ideologies or worldview, if you will, based on morality and historical consequences of policies.  Have a look.   

I've been featured on VOX's front page with an article entitled "The World does NOT Hate America" and I've had another article reach nearly a thousand hits in a single day called, "Liberals Redefining Hate"  This to say that I am capable of drawing an audience and want to use some of your posts/articles as arguments or briefs.  I do ask that we keep the language clean and respectful to make knowledge acceptable.  Other than that you don't have to do anything different than what you're doing now.  If you make the pool, I will simply cross post the relevant articles with links back to the jurors' sites.  The alternative is to give jurors authority to author directly to the JudgRight blog albeit, limited to the pages section rather than the front page.  As the votes come in, the most effective articles are posted on the front page as majority and dissenting briefs.  Current jurors are samples of how your blogs are to be featured.

Issues are raised in articles written by Dennis Prager, Michelle Malkin and others (conservatives) and Howard Zenn and others (liberals) as though presenting their cases from opposite sides on the same issues.  The jurors then submit their opinions and vote for the best of the pool for majority opinion and dissenting opinion, building an archive of verdicts.  Comments open to anyone with limited moderation to keep them clear of spam and abuse.  The general purpose being, we encourage people to be informed and think through major issues of our times and in order to do that, generate traffic to our varied websites.

UPDATE:

[I have put the same information on my StumbleUpon page to widen my search for jurors.  Feel free to spread the word.  I am collecting applications for the moment and we’ll see how many want to jump in.  If there are very many, I may set up ‘lower’ courts with 5 and 3 members in keeping with circuits and whatever is beneath the circuit courts.  Everyone is eligible until further notice.]

END UPDATE

Any bloggers interested in participating should private message me with the following information.

Your First Name:

(will be used as site ID.  Example: Judge Bob)

Your Site URL:

(will be used to link back to your site)

Estimate of attention/time/wordcount you can dedicate to this project.  (Example:  Minimum 400 words per issue raised, 1 issue per week)

We vote on which issues to take up, so I am looking for a group with like interests (politics, religion, strong opinions, and odd behaviors) and varied backgrounds to provide a wide array of perspectives to draw from.

The campaign slogan of our next president was "Change for America" but it took months to find out what he intended to change and how he intended to change it.  We had to deduce from little slips during debates and campaign speeches and conversations, which he thought were semi private but were virally published, that he had one huge agenda in mind.  Fundamentally changing America is a huge agenda.  An obscure radio interview released late in the campaign cycle revealed how huge, and how fundamental a change to which he was referring.  In that radio interview, he was talking about the extreme liberal Supreme Court under Justice Warren and how they had not gone far enough.  He felt they had made great strides in what government can't do but had missed their responsibility and opportunity to define what government must do for the people.  Expanding and developing the thought, he went on to explain that they should have ensured the government would redistribute the wealth.  He labeled it 'Redistributive Change.'  He intends to use his presidential powers to influence both the Legislature and the Courts toward that end.

In the words of President Elect Barack Obama  "I don't want to punish you for your success (Mr. Smallbusinessman) - but I think when you spread the wealth around it's good for everybody. "

"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old - and that's the criterion by which I'll be selecting my judges."   Barack Obama

Folks, the responsibility of judges is not to 'feel' for victims or plaintiffs.  The responsibility of judges is to ensure justice prevails.  If somebody steals my truck and takes it for a joy ride, I don't want a judge who 'feels' the economic injustice of the thief's monetary circumstances or his stress levels due to public rejection of his sexual preference.  Likewise, it is not the job of legislators to legislate philnathropy, giving away taxpayer's money and then call that economic justice.  Listen carefully, for every dollar of your money they give away, they have to charge you three dollars because its expensive to operate a bureaucracy. 

But that's not the worst of it.  For every dollar they take away from business, that's one less dollar that could be used to hire more workers or pay more for their workers' work, or invest in new business ventures creating new businesses and more jobs.  It doesn't increase available revenue for the bureaucrats to spend.  It actually reduces the amount they have to spend because it reduces the number of paychecks and sales for them to tax.  This is not a theory, but has been proven thanks to the work of Ronald Reagan.  I should clarify that statement.  Ronald Reagan's economic plan was exceptional because it worked.  Lower taxes increased tax revenue as he promised, because it expanded commerce.  More paychecks, more products bought, more taxes paid overall even though less taxes were paid individually.  The Conservative model of economic politics is to grow the entire pie so everybody benefits.  The Liberal model of economic politics is to take some of Paul's earnings to give to Peter to grow Peter's portion, but government has to hang on to 2/3 of what they took from Paul to pay themselves for doing such a fine job.  (approval rating hit an all time low of 9% under extreme leftist liberal control)   It does not matter to them that they are shrinking the whole pie to increase Peter's portion.

But this is still not the worst of it.  All that extra money they take from you and those business people is hurting the very people they claim to be helping.  Listen to this historian and economist debate an advocate for interventionism.

Interventionism as a government policy, is not based in the reality of consequences.  It is based on feelings and in good intentions and it does tremendous damage to the very groups it endeavors to help.  Interventionism is a fine idea on a personal basis.  That's what philanthropy is, an endeavor to help those less fortunate than yourself.  On a personal basis, it works well because you are cautious how you spend your money to help and you are cautious that you are not hurting the ones you try to help with your hard earned money.  But as a governmental policy where party c (caring politician) is employed to require money of party b (businessman/worker) under threat of incarceration, to pay for the benefit of party a, (assisted) the person footing the bill b, is not only not appreciated, he's labeled evil.  The person who is appreciated, c didn't personally pay a dime and also benefitted.  The person who was supposed to benefit, a has to jump through hoops to qualify for this aid, assistance, help thanks to the ineffecient bureaucracy created to handle a national scale operation which simply doesn't care what it cost or if it really helps.  The result is that the assisted group overall is rewarded for bad behavior and choices and penalized for good behavior and choices.  Throwing your responsibility to "Do Something" onto the government is not worth it.

And that's still not the worst of it.  While in the Senate, the Senator from Chicago sponsored a bill to tax the US citizenry for the poverty stricken around the world and hand off that money to the corrupt United Nations.  It was called the Global Poverty Act.  Another version is known as the Jubilee Act  also co-sponsored by Barack Obama.  This one gets its name from the Jewish tradition under direction of the Torah to dissolve all debt every seven years.  The Act gets this name because it is designed to dissolve debt to the tune of almost $1,000,000,000,000.00 (one trillion dollars)  What this means is that taxing America to donate to the world is a recurring theme in the Obama agenda.  Remember the principal of taking from Paul to pay Peter.  (Bureaucratic help rewards bad behavior and penalizes good behavior.)  Nobody wins except the government and a few despots.  Those recipients will wind up in worse condition than they're in now.  They're in trouble in the first place because of despots and their wars and previous attempts to help are continually abused by the despots and their militaries.  Its sad, its horrible, but unless we are willing to take our military and enforce our form of government and values on them, nothing will help.  And feel good policies don't generally include sacrificing our troops in the cause of ending the bloodshed of foreigners.  In the case of national disasters, our citizenry have stepped up and out donated every other entity in the world including our own government.  How much more could they do if the government weren't stealing from them?

Lest anyone think my words too strong, or my conclusions about the will of the founding fathers wrong, let's just examine a few quotes on the subject.  Shall we?

“To take from one, because it is thought his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers, have not exercised equal industry and skill, is to violate arbitrarily the first principle of association, the guarantee to everyone the free exercise of his industry and the fruits acquired by it.” — Thomas Jefferson, letter to Joseph Milligan, April 6, 1816

“A wise and frugal government… shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government.” — Thomas Jefferson, First Inaugural Address, March 4, 1801

“Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.” — Thomas Jefferson

“The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If ‘Thou shalt not covet’ and ‘Thou shalt not steal’ were not commandments of Heaven, they must be made inviolable precepts in every society before it can be civilized or made free.” — John Adams, A Defense of the Constitutions of Government of the United States of America, 1787

“With respect to the two words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.” — James Madison in a letter to James Robertson

In 1794, when Congress appropriated $15,000 for relief of French refugees who fled from insurrection in San Domingo to Baltimore and Philadelphia, James Madison stood on the floor of the House to object saying:

“I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.” — James Madison, 4 Annals of Congress 179, 1794

“[T]he government of the United States is a definite government, confined to specified objects. It is not like the state governments, whose powers are more general. Charity is no part of the legislative duty of the government.” — James Madison

There are brilliant economists who think like President Elect Barack Obama and their are brilliant economists who think like the authors of our founding documents, the framers of our system of governance.  The current argument from the progressive/leftist/liberal ranks goes something like this; "Isn't conservatism by definition trying to conserve the status quo? and doesn't that mean that you conservatives are stuck in the past?"  I rather believe the new way of thinking as those people who think like the founders (those men who wrought from whole cloth something that had never existed on earth since the beginning of civilization, a nation as much as possible, ruled by its citizenry) than those who think like every other form of governance from the beginning of theifdom and the liberal is still labeling the old way of thinking the "NEW THING."  (that the citizenry are too dimwitted to rule themselves)  Without a doubt, America is changing beyond recognition from its framers' ideals into the all too familiar, socialist, fascist state. 

A chemical attack against pro-lifers on their own property.
Terrorizing a Catholic church in meeting.
Calls to burn Mormon temples were sent out via gays' blogs and threats against Mormons and Catholics were posted there.
Anthrax scare at the HQ of the Mormon religion.  Churches being vandalized.
Anthrax scare at the Los Angeles Ward.
Anthrax scare at a Catholic Knights of Columbus HQ in New Haven, Connecticut.
Man received 16 stitches after being struck by a "No on Prop 8" advocate.
Burning copies of the Book of Mormon on the steps of local Mormon Wards

Theater director driven out over gay marriage

From intimidation tactics to outright violent attacks are being perpetrated on the organizations who supported Prop 8 all across this nation.  This is terrorism and in every case, if the roles had been reversed the legal actions that would have been taken not to mention the media coverage that would have been dedicated to 'informing' the public would have sparked an outrage that would have undermined any credibility of those organizations.  However, since the crimes are being committed by a protected group, the media have been all but silent and in at least one case the commentator equated the criminal activity with that of the victims of that crime calling both sides hate filled and angry.

This episode of obfuscation is but one more step toward the outright persecution and expunging of religion and conservatism in our land.  City councils have in the past condemned the religious organizations for their stance on the issue of family values in opposition to calling the same sex relationship equivalent and God ordained marriage.  We are headed for dark times in this world as believers.  Though there are official gay voices denouncing this behavior, they are being drowned out by the vast numbers of very vocal proponents of their agenda. 

Tony Perkins of the Family Research Council
"We are going to see, I think, unprecedented attacks against our faith through measures like the hate crimes [legislation] to the Employment Non-Discrimination Act," he says. "We're going to see attacks on innocent human life through the Freedom of Choice Act, trying to erase all the gains that have been made in the pro-life movement. And I think even our freedoms are going to come under attack." 

Please act immediately to defend the pro-family victory won in California last week when the people of California passed a constitutional amendment (Proposition 8) by a 52%-48% margin to protect marriage as the union of a man and a woman.  Since Election Day, Gov. Arnold Schwarzenegger (R) has made statements supporting demonstrations against Proposition 8, and urging California 's Supreme Court to block the amendment's enforcement.

 

There are political streams of thought that would deny the church the freedom to speak the truth as it understands it.  If that happens, can the age of martyrs be far behind?

Woe unto them that draw iniquity with cords of vanity, and sin as it were with a cart rope: That say, Let him make speed, and hasten his work, that we may see it: and let the counsel of the Holy One of Israel draw nigh and come, that we may know it! Woe unto them that call evil good, and good evil; that put darkness for light, and light for darkness; that put bitter for sweet, and sweet for bitter! Woe unto them that are wise in their own eyes, and prudent in their own sight! Woe unto them that are mighty to drink wine, and men of strength to mingle strong drink: Which justify the wicked for reward, and take away the righteousness of the righteous from him!

History Of Man:  from bondage to spiritual faith, from spiritual faith to great courage, from courage to liberty, from liberty to abundance, from abundance to selfishness, from selfishness to complacency, from complacency to apathy, from apathy to dependency, from dependency back to bondage – Alexander Tylers

The great cycle of faith living can be modified, interrupted, as seen in the several Jesus movements over this past century.  The Azusa Street outpouring and many other examples were exactly that.  A movement back toward Christ and the faithful church.  We who believe should first pray and then act in accordance with the Spirit who guides us.  It is very likely that the California Supreme court will again try to thwart the will of Californians to support this lobbying agenda to ruin everything this country was built upon.  Its not just the issue of homosexual marriage, its naming pornography free speech and devaluing the life of every human being.  There is so much more going on than destroying the family values that have made and kept this country strong.  Eventually, it will come down to the demonizing of our world view.

The California proposition 8 is an issue that is bigger than the homosexual marriage issue.  This is about 4 men thwarting the will of well over 60% of the people of California.  This proposition will amend the constitution of California to put the gay marriage out of reach of those judges.  Watch this video and take to heart the message Newt delivers about how fundamental this issue is to the design our founding fathers intended for this country.  Activist judges have been imposing their will over the will of the people for decades.  With this amendment, we Californians can send a message to all activist judges to abide by their intended roles and halt their over stepping the authority afforded them in the Constitutions of state and federal design.

Let me start by heading off some of the debate.  In some circumstances, the application of a double standard is deemed acceptable by society. For example, in many countries, laws prevent children or young adults from purchasing or consuming alcohol and tobacco products, while adults do not have this restriction. This differential treatment is a double standard; however, it is often accepted based on the belief that underage individuals are likely less capable of making mature decisions regarding those activities.

The problem of double standards goes far beyond a little unfairness.  They make room for horrendous injustices, especially on an international scale with little or no consequence to the perpetrators of those injustices and quite literally no consequence to the perpetrators of the double standards.  Take for example the way the press treat the Palestinians and the Israelites or the American military and the extremist Islamo-Nazis or any Western legislature having to accommodate the Muslim presence in their countries when Western presence is NOT tolerated in Muslim countries.  Try building a church in Egypt or Saudi Arabia. 

A national example is Republican politicians being stereotyped as scandal ridden, uncaring, greed controlled evil incarnate.  When the studies are done comparing the number of scandals, the number of greed controlled, and the policies that help vs. those that actually hurt and who authors them, the conservative Republicans are far and away morally superior to their 'Progressive' Democrat counterparts.

This article by Yahoo News highlights a relatively small example in the Olympics basketball team competition.

Yahoo News

Aug 13, 08

BEIJING – When Jason Kidd logged into a laptop to see the Spaniards with his own eyes on Wednesday morning, the photo appeared just as described to him: Here were National Basketball Association players giggling like schoolgirls as they posed with fingers pressed against their temples in a squinty-eyed pre-Olympic salute to China.

Before long, Kidd considered the consequences had those giddy European faces been substituted with those of Team USA.

“We would’ve been already thrown out of the Olympics,” he told Yahoo! Sports. “At least, we wouldn’t have been able to come back to the U.S. …There would be suspensions.”

And for his European peers, well, Kidd suggested, “They won’t do anything to them. It’s a double standard.”

For Spain, there are several NBA players, including the Lakers’ Pau Gasol and Toronto’s Jose Calderon, in this unnerving team photo. They wore Spanish uniforms and had the federation’s seal on the floor. It ran as a full-page advertisement in a Madrid newspaper, an advertisement for a national team sponsor. This wasn’t an impromptu shot, but a carefully calculated choice.

In a recent article I linked a video by John Stossel revealing the terrible condition of American schools and the lobbies and legislative blocks to fix them.  Education is one of the key issues liberals have dominated for decades on their reputation of caring for our students.  It would seem to the liberals, care is the equivalent of dollars.  But we are contributing the highest amount of money per student of any country.  $10,000 per year per student.  At an average of 26 students per classroom, that's 260,000 per class per year.  For one year of my life I attended a small town school in which 1 grade was contained in a two classroom building.  If they'd had $520,000 dollars in today's money value back then I would have had not only two teachers but an engineering lab, a musical instrument, a swimming pool, a fully stocked gym complete with weight room and an on call psychologist and special tutors for any subject I might have been struggling in.  The answer is management.  The system has to attach the money to the kid rather than the school.  Management will correct itself if they have to compete for the kids' CHOICE instead of the kids being conscripted to this school or that one.  Conversely, no one school is conscripted to take any one child.  The environment in the classroom would change dramatically if the student knows his or her future (or at least their parents' approval) is dependent on his or her behavior.  Disruptive children who were expelled would then have to shop for a school willing to take them on.  Make no mistake, there will be those kids who fall through the cracks but there will be far fewer to fall through than are now being passed and graduated with NO ability to read or do basic math and the current astronomical dropout rate would fall to near nothing.  Colleges would not have to require junior college attendance to bring the students up to college level.  The point is that one of the liberals' flagship issues is a means to a profit rather than a concern for the student or the nation, yet they get a pass in the media and among the voters because they are typecast as the caring party.

If we want justice to reign in our country and in the world, we have to apply standards equally, not across the board, but within like groups and according to the authority that group holds.  Judicially, we hold a policeman more accountable than the general populace because the policeman has greater authority.  That does not mean we give criminals a pass for unethical behavior.  Likewise the politician.  We should hold the politician to a much greater standard even than police because they write laws that all of us must obey.  They should be representative of those laws more than all the rest of us because of their authority to write them or abolish them.  So too, with judges, the military, any authority.  Condemnation for one and a pass for the other politician based on what platform they run on IS an injustice.  They all represent all of us whatever platform they ran on and must be accountable equally as politicians with the same authority rather than by typecast and general opinion.  If you tried to apply this practice on a more local arena, you'd feel the consequences pretty quickly.   Let's say a policeman is hired and promoted because he was more lenient to criminals.  Another county hires and promotes on the basis of stricter personal attitudes toward criminals.  All the screwups and scandals for the one policeman are overlooked or justified by the local media and authority while the other policeman can not scratch his nose without someone accusing him of abuse and hauling him before an investigative committee.  What happens?  If its the lenient police who get the pass, the crime rates sky rocket till you can't walk down the street safely and if its the strict police who get the pass, the rights of individuals are trampled.  Now go back and apply that to national stereotypes.

Now this one is personal.  Whatever your faith or non-faith, our behavior should be evaluated on the same basic values.  We understand these values to be established by the majority will.  In this country we have voluntarily applied certain limitations of majority will to protect our choice to worship how we will among other things.  It is on the authority of these limitations that minority voices have influence.  It is in this authority that minority voices challenge, intimidate, and forestall majority will in the wisdom of good influences like the Bible, traditions, and just plain common sense.  These limitations have become the rule rather than the exception so that personal freedom trumps the will of the people.  That's fine until that authority is the excuse for trumping the personal freedom of the majority in favor of the will of the minority.  This is what gay marriage is and activist judges are the means by which this lobby is controlling our culture.  The homosexual lobby is determined to force their lifestyle on the rest of us.  Of course I'm not talking about being made to participate in homosexual activity.  I am talking about being forced to acknowledge homosexuality as normal and healthy.  Since the Bible specifically speaks against this practice, my faith is under attack.  My freedom of speech is under attack so that I could be prevented from teaching that message from the Bible.  This has already been accomplished in Canada and other countries under hate speech laws.  While we have not had hate speech laws implanted in our legal system here, the gay lobby has already managed to get tolerance training into our schools and workplaces and many cities and states are adopting 'special protection' laws which make a criminal act against homosexuals a crime with special circumstances.  This is the terminology used when a murderer is convicted because of his use of an extended period of rape or torture or other especially heinous activity besides the murder itself.  In other words, if a criminal were to kill a Christian because he was a Christian, he will be convicted of murder but if he were to kill a gay because he was a gay, well then he will be more likely to get the death penalty because of his prejudice against homosexual.

Wherever you spot a double standard, you should first shout it from the rooftops that an injustice is being committed.  If necessary you should go on to explain the dangers and demonstrate it by examples around your community and bigger examples around the country and even bigger examples around the world and even bigger examples in history until the perpetrator of double standards understands he or she is destroying civil liberty and propagating an oligarchic reign over our society.  The courts' rulings are bad law.  From Roe v. Wade (abortion) to Lockyer v. San Francisco (gay marriage ban) the courts have been selecting cases and presenting briefs to write laws under the pretext of interpreting the constitutions of states and country and usurping the established authority of the other two branches of government to thwart the people's collective will.  A tiny group of people are supplanting the original design of our government and establishing themselves as our rulers.

I feel like I'm stunting this article because there are so many egregious examples of major damage done to our culture as well as that of the world through the continually worsening double standards and misinformation against the main stream will of the people.  I have to stop somewhere or else continue into ad nauseum.  As it is, I've already missed my personal deadline.

Ever been on the road when another driver is making erratic moves and false signals?  You don't know whether to pass him or hang way back and wait for the inevitable accident to occur and all you can do is pray he gets off the road before he hurts himself or worse, somebody else.  Have you ever been the one others are looking at as if you got your license from a Cracker Jack box?  If we compare these kinds of road experience to the nations of the world, you can look around and see other nations swerving all over the pavement bumping into one another vying for more prominent positions in world economy and military might.  Little neighboring countries in Africa are like the cars behind us, they matter because we hate to see others hurt, but we are out of the danger zone.  Others are nearer to us and most of them seem to have a steady hand at the wheel.  One by one, others are coming up from behind and absolutely have no concern for their own welfare or anyone else's.  It used to be that the drivers would take it upon themselves to scare the nuttiness out of those passing carelessly, it used to be that the other passengers in the car being driven so dangerously would take that driver away from the wheel and put in somebody much more careful.  Nowadays, the passengers are divided, half cheering him on and the other half sitting quietly and grumbling.  Nowadays, the other cars don't want to deal with the nut, so he is zipping by them and making sure everybody on the road is intimidated by him. Often times, there are fights in the front seat over the wheel.

Lately, even though we have been way out front, the rest of the field is watching us wander from right side to left side occasionally jerking onto the left shoulder and skidding back onto the pavement.  Now, if you think of years as being minutes, its easy to see how that could be.  Every four minutes we are changing drivers and there is always a huge discussion over who the next driver will be.  The other drivers had grown accustomed to this and most would hang back whenever it was time to make the switch.  Just lately we have the governmental powers fighting over the wheel.  The president is supposed to be the one at the wheel.  But Congress has been doing its best to usurp the authority of the president to steer the bus in defensive action and aggressive action.  Add to that the Supreme court jumping in and pulling the wheel hard to the left working to take the authority to imprison battlefield combatants until war's end.  Nobody else on the road wants to work with us to ensure security because they don't know if we'll be a friend or a backstabber in the next few minutes.

So, now its time to choose a new driver again and we need to consider all that this driver is going to have to face.  Nobody in the other cars are willing to step up and do something about the gang of cars known as Islamic jihad.  This president and this congress will have to make decisions about powers commandeering the wheel and if they don't or won't, we passengers are going to have to hit the brakes and decide for the three powers, who is supposed to drive.  Wait!  Where did the brake pedal go.  Didn't we have one installed when we built this vehicle known as the union of states?  The steering wheel is being fought over and we don't have brake pedal?  Is anybody in the front seat doing something about this?  Is anybody on the bus even concerned enough to sound an alarm?

Okay, so the analogy isn't perfect, but the concern should come through loud and clear.  If we don't settle down and work out a clear plan of operation, we very likely will become the former world power.  Those who think that would be a good thing are by definition anti-American.  Who would step up to ensure the good things America does?  Would China act as the world councilor and police for human rights?  Do you think the United Nations could do it?  Maybe you could place your trust in Islam?  Which entity around the world has the muscle or the will to influence the world's drivers to serve their own well and work within the constraints of the rules of the road?  No other country or world power has both the power and the will for the job and if we allow Islam or the UN or anybody with enough might to make the rules of the road, this will be a far different world.  Islam would create a far more dangerous road by taking other vehicles and using them to their own ends.  China would probably do something similar.  The UN is basically a subset of Islam.  Every other entity is either too weak or has already succumbed to the influence of radical Islam.

Once you put a light on the responsibility of the lead position, you begin to see how tenuous is the role we play in world politics and the consequences of dropping that responsibility begin to look more ominous than the 2nd amendment or a marriage certificate for homosexuals.  This election will literally decide whether we place more judges who will fight for the wheel or more judges who will take the roll the builders and planners designed for them, whether we have a Congress who help and back the driver or are also pulling and fighting for the wheel.  The parties have drawn clear lines on who will take the wheel from the assigned driver and who will support the decision making structure as designed by the original driver and navigators.  I suggest you vote for a conservative veteran this election, whether for president or for Congress.

The last paragraph of the Declaration of Independence

We, therefore, the Representatives of the United States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

    Biblical marriage vs. CA courts: Ruling
today Jeff Johnson - OneNewsNow - 6/16/2008 4:00:00 AM

Pro-family attorneys are trying another legal route to block implementation of so-called "gay marriage" in California this evening.

 

The California Supreme Court has rejected appeals of its ruling that the state must issue marriage licenses to same-sex couples beginning at 5:01 p.m. (local time) today. But the Supreme Court's decision merely hands the case back down to the California Court of Appeal, which is charged with deciding how and when to implement the high court's ruling. It is that power that Matt Staver, founder and chairman of Liberty Counsel, is appealing to now.
 
"It should clearly be stayed because the people are going to vote in November with regards to the California marriage protection amendment. That's a matter that, in fact, we addressed before the California Supreme Court, which they denied. However, the California Court of Appeals has a separate, independent obligation to consider this matter as well," contends the attorney.
 
Liberty Counsel filed a petition last week with the appeals court on behalf of the Campaign for California Families, asking the court to delay issuing marriage licenses to same-sex couples for that and other reasons. "The California Supreme Court only addressed two of the many statutes regarding marriage. You can't simply address two statutes when there's [sic] literally hundreds of others, all of which reference 'men' and 'women,' 'male' and 'female,' 'husband' and 'wife,' all of which have to be addressed," Staver explains.
 
The Liberty Counsel chairman says failure to take matters such as that under consideration is one of the primary reasons the U.S. and state constitutions do not let judges write laws. "All of the confusion illustrates one point: judges should not be in the business of being politically active lawmakers," Staver points out.
 
The appeals court, according to the attorney, should stay the decision to give the legislature time to examine the hundreds of other state statutes that could come into conflict with the Supreme Court's ruling. "It's that court which is tasked with implementing the particular ruling. It's at that level we're asking, now, this court to do its job, to follow the rule of law and to stay this decision," Staver says.
 
Liberty Counsel's press release says this case "is far from over. We will not give up. The people will have the final say on marriage."

So you think the war against radical Islam isn't reason enough to vote conservative even though this is the most compelling issue of our time.  If you look at history with the lead up to the second World War and all the appeasement efforts and all the desire to talk Germany, Japan, and Italy into reasonable behavior.  The very same mistakes are being made today with Islam and worse.  Supposing the war was not an issue, what would be the next most compelling issue of our time?

California's highest court has decided the people's will does not matter.  In a vote 4 to 3 they have decided to usurp the power of the people and to write law over the power and authority of the state legislature to impose their will on virtually the people of California.  I have linked the justification for their decision here.  But Justice Baxter in his dissenting opinion has explained far better than I can exactly why this decision is horrible wherever you stand on the gay marriage issue.  Just to state the reasons in a concise manner, Four people in black robes have usurped the will of the people of California, one of the most liberal states in the union and after we have voted to define marraige as a union between one man and one woman.  These four judges have overthrown the process and have read into the state's constitution something it does not say in order to force their will on all the rest of us.  If a Democrat wins this election, they will put judges on the highest court in the land who desire to use this method of legislating from the bench to usurp the will of the people and hand down decisions that overstep their authority the same as these judges have.

CONCURRING AND DISSENTING OPINION BY BAXTER, J.
The majority opinion reflects considerable research, thought, and effort on
a significant and sensitive case, and I actually agree with several of the majority’s
conclusions. However, I cannot join the majority’s holding that the California
Constitution gives same-sex couples a right to marry. In reaching this decision,
I believe, the majority violates the separation of powers, and thereby commits
profound error.

Only one other American state recognizes the right the majority announces
today. So far, Congress, and virtually every court to consider the issue, has
rejected it. Nothing in our Constitution, express or implicit, compels the
majority’s startling conclusion that the age-old understanding of marriage — an
understanding recently confirmed by an initiative law — is no longer valid.
California statutes already recognize same-sex unions and grant them all the
substantive legal rights this state can bestow. If there is to be a further sea change
in the social and legal understanding of marriage itself, that evolution should occur
by similar democratic means. The majority forecloses this ordinary democratic
process, and, in doing so, oversteps its authority.

The majority’s mode of analysis is particularly troubling. The majority
relies heavily on the Legislature’s adoption of progressive civil rights protections
for gays and lesbians to find a constitutional right to same-sex marriage. In effect,
the majority gives the Legislature indirectly power that body does not directly
possess to amend the Constitution and repeal an initiative statute. I cannot
subscribe to the majority’s reasoning, or to its result.

As noted above, I do not dispute everything the majority says. At the
outset, I join the majority’s observation that “[f]rom the beginning of California
statehood, the legal institution of civil marriage has been understood to refer to a
relationship between a man and a woman.” (Maj. opn., ante, at p. 23, fn. omitted.)
Moreover, I endorse the majority’s interpretation of California’s Domestic
Partnership Act (DPA; Fam. Code, § 297 et seq.). As the majority makes clear,
the DPA now allows same-sex partners to enter legal unions which “afford . . .
virtually all of the [substantive] benefits and responsibilities afforded by California
law to married opposite-sex couples.” (Maj. opn., ante, at p. 45; see also Fam.
Code, § 297.5.) As the majority further correctly observes, California has done all
it can do with regard to providing these substantive rights, benefits, and
responsibilities to same-sex partners. (Maj. opn., ante, at pp. 44-45.)1

I also agree with the majority’s construction of Family Code section 308.5.
As the majority explains, this initiative statute, adopted by a popular vote of 61.4
percent and thus immune from unilateral repeal by the Legislature (Cal. Const.,
art. II, § 10, subdivision (c)), does not merely preclude California’s recognition of
same-sex “marriage[s]” consummated elsewhere, but also invalidates same-sex
“marriage[s]” contracted under that name in this state.2

In addition, I am fully in accord with the majority’s conclusion that Family
Code sections 300 and 308.5, insofar as they recognize only legal relationships
between opposite-sex partners as “marriage[s],” do not discriminate on the basis of
gender.

Finally, I concur that the actions in Proposition 22 Legal Defense and
Education Fund v. City and County of San Francisco (Super. Ct. S.F. City &
County No. CPF-04-503943) and Campaign for California Families v. Newsom
(Super. Ct. S.F. City & County No. CGC-04-428794) should have been dismissed
as moot in the wake of this court’s decision in Lockyer v. City and County of San
Francisco (2004) 33 Cal.4th 1055.

However, I respectfully disagree with the remainder of the conclusions
reached by the majority.

The question presented by this case is simple and stark. It comes down to
this: Even though California’s progressive laws, recently adopted through the
democratic process, have pioneered the rights of same-sex partners to enter legal
unions with all the substantive benefits of opposite-sex legal unions, do those laws
nonetheless violate the California Constitution because at present, in deference to
long and universal tradition, by a convincing popular vote, and in accord with
express national policy (see fns. 1, 2, ante), they reserve the label “marriage” for
opposite-sex legal unions?3 I must conclude that the answer is no.

The People, directly or through their elected representatives, have every
right to adopt laws abrogating the historic understanding that civil marriage is
between a man and a woman. The rapid growth in California of statutory protections
for the rights of gays and lesbians, as individuals, as parents, and as
committed partners, suggests a quickening evolution of community attitudes on
these issues. Recent years have seen the development of an intense debate about
same-sex marriage. Advocates of this cause have had real success in the
marketplace of ideas, gaining attention and considerable public support. Left to its
own devices, the ordinary democratic process might well produce, ere long, a
consensus among most Californians that the term “marriage” should, in civil
parlance, include the legal unions of same-sex partners.

But a bare majority of this court, not satisfied with the pace of democratic
change, now abruptly forestalls that process and substitutes, by judicial fiat, its
own social policy views for those expressed by the People themselves.
Undeterred by the strong weight of state and federal law and authority,4 the
majority invents a new constitutional right, immune from the ordinary process of
legislative consideration. The majority finds that our Constitution suddenly
demands no less than a permanent redefinition of marriage, regardless of the
popular will.

In doing so, the majority holds, in effect, that the Legislature has done
indirectly what the Constitution prohibits it from doing directly. Under article II,
section 10, subdivision (c), that body cannot unilaterally repeal an initiative
statute, such as Family Code section 308.5, unless the initiative measure itself so
provides. Section 308.5 contains no such provision. Yet the majority suggests
that, by enacting other statutes which do provide substantial rights to gays and
lesbians — including domestic partnership rights which, under section 308.5, the
Legislature could not call “marriage” — the Legislature has given “explicit
official recognition” (maj. opn., ante, at pp. 68, 69) to a California right of equal
treatment which, because it includes the right to marry, thereby invalidates section
308.5.5

I cannot join this exercise in legal jujitsu, by which the Legislature’s own
weight is used against it to create a constitutional right from whole cloth, defeat
the People’s will, and invalidate a statute otherwise immune from legislative
interference. Though the majority insists otherwise, its pronouncement seriously
oversteps the judicial power. The majority purports to apply certain fundamental
provisions of the state Constitution, but it runs afoul of another just as fundamental
— article III, section 3, the separation of powers clause. This clause declares that
“[t]he powers of state government are legislative, executive, and judicial,” and that
“[p]ersons charged with the exercise of one power may not exercise either of the
others” except as the Constitution itself specifically provides. (Italics added.)
History confirms the importance of the judiciary’s constitutional role as a
check against majoritarian abuse. Still, courts must use caution when exercising
the potentially transformative authority to articulate constitutional rights.
Otherwise, judges with limited accountability risk infringing upon our society’s
most basic shared premise — the People’s general right, directly or through their
chosen legislators, to decide fundamental issues of public policy for themselves.
Judicial restraint is particularly appropriate where, as here, the claimed
constitutional entitlement is of recent conception and challenges the most
fundamental assumption about a basic social institution.

The majority has violated these principles. It simply does not have the right
to erase, then recast, the age-old definition of marriage, as virtually all societies
have understood it, in order to satisfy its own contemporary notions of equality
and justice.

The California Constitution says nothing about the rights of same-sex
couples to marry. On the contrary, as the majority concedes, our original
Constitution, effective from the moment of statehood, evidenced an assumption
that marriage was between partners of the opposite sex. Statutes enacted at the
state’s first legislative session confirmed this assumption, which has continued to
the present day. When the Legislature realized that 1971 amendments to the Civil
Code, enacted for other reasons, had created an ambiguity on the point, the
oversight was quickly corrected, and the definition of marriage as between a man
and a woman was made explicit. (Maj. opn., ante, at pp. 23-36.) The People
themselves reaffirmed this definition when, in the year 2000, they adopted
Proposition 22 by a 61.4 percent majority.

Despite this history, plaintiffs first insist they have a fundamental right,
protected by the California Constitution’s due process and privacy clauses (Cal.
Const., art. I, §§ 1, 7, subd. (a)), to marry the adult consenting partners of their
choice, regardless of gender. The majority largely accepts this contention. It
holds that “the right to marry, as embodied in article I, sections 1 and 7, of the
California Constitution, guarantees same-sex couples the same substantive
constitutional rights as opposite-sex couples to . . . enter with [one’s chosen life
partner] into a committed, officially recognized, and protected family relationship
that enjoys all of the constitutionally based incidents of marriage.” (Maj. opn.,
ante, at p. 79, fn. omitted.) Further, the majority declares, a “core element[ ] of
this fundamental right is the right of same-sex couples to have their official family
relationship accorded the same dignity, respect, and stature as that accorded to all
other officially recognized family relationships.” (Id., at p. 81.)

To the extent this means same-sex couples have a fundamental right to
enter legally recognized family unions called “marriage” (or, as the majority
unrealistically suggests, by another name common to both same-sex and opposite-
sex unions), I cannot agree. I find no persuasive basis in our Constitution or our
jurisprudence to justify such a cataclysmic transformation of this venerable
institution.

Fundamental rights entitled to the Constitution’s protection are those
“which are, objectively, ‘deeply rooted in this [society’s] history and tradition,’
[citations], and ‘implicit in the concept of ordered liberty,’ such that ‘neither
liberty nor justice could exist if they were sacrificed, [citation].” (Washington v.
Glucksberg (1997) 521 U.S. 702, 720-721 (Glucksberg); see, e.g., Dawn D. v.
Superior Court (1998) 17 Cal.4th 932, 940.) Moreover, an assessment whether a
fundamental right or interest is at stake requires “a ‘careful description’ of the
asserted fundamental . . . interest. [Citations.]” (Glucksberg, supra, at p. 721;
Dawn D., supra, at p. 941.)

These principles are crucial restraints upon the overreaching exercise of
judicial authority in violation of the separation of powers. Courts have “ ‘always
been reluctant to expand the concept of substantive due process because
guideposts for responsible decisionmaking in this unchartered area are scarce and
open-ended.’ [Citation.] By extending constitutional protection to an asserted
right or liberty interest, we, to a great extent, place the matter outside the arena of
public debate and legislative action. We must therefore ‘exercise the utmost care
whenever we are asked to break new ground in this field,’ [citation], lest the
liberty protected by the Due Process Clause be subtly transformed into the policy
preferences” of judges. (Glucksberg, supra, 521 U.S. 702, 720.)

It is beyond dispute, as the Court of Appeal majority in this case
persuasively indicated, that there is no deeply rooted tradition of same-sex
marriage, in the nation or in this state. Precisely the opposite is true. The concept
of same-sex marriage was unknown in our distant past, and is novel in our recent
history, because the universally understood definition of marriage has been the
legal or religious union of a man and a woman.6

One state, Massachusetts, has within the past five years recognized samesex
marriage. (Goodridge, supra, 798 A.2d 941; see fn. 4, ante.) However, as the
Court of Appeal majority in our case observed, “the Massachusetts Supreme
Judicial Court’s decision establishing this right has been controversial. (See, e.g.,
Note, Civil Partnership in the United Kingdom and a Moderate Proposal for
Change in the United States (2005) 22 Ariz. J. Internat. & Comparative L. 613,
630-631 [describing the controversy engendered by Goodridge]; see also Lewis v.
Harris [(N.J.Super.Ct.App.Div. 2005) 875 A.2d 259, 274] [concluding from ‘the
strongly negative public reactions’ to Goodridge, and similar decisions from lower
courts of other states, that ‘there is not yet any public consensus favoring
recognition of same-sex marriage’].) Several other states have reacted negatively
by, for example, amending their constitutions to prohibit same-sex marriage. (See
Stein, Symposium on Abolishing Civil Marriage: An Introduction (2006)
27 Cardozo L.Rev. 1155, 1157, fn. 12 [noting, as of January 2006, ‘39 states [had]
either passed laws or amended their constitutions (or done both) to prohibit samesex
marriages, to deny recognition of same-sex marriages from other jurisdictions,
and/or to deny recognition to other types of same-sex relationships’].)”

California’s history falls squarely along this nationwide spectrum, though at
its more progressive end. As the majority itself explains, despite the Legislature’s
passage of the DPA and other statutes pioneering gay and lesbian rights,
California law has always assumed that marriage itself is between a man and a
woman. In recent years, both the Legislature and the People themselves have
enacted measures to make that assumption explicit. Under these circumstances,
there is no basis for a conclusion that same-sex marriage is a deeply rooted
California tradition.

Undaunted, the majority nonetheless claims California’s legal history as
evidence of the constitutional right it espouses. According to the majority, the
very fact that the Legislature has, over time, adopted progressive laws such as the
DPA, thereby granting many substantial rights to gays and lesbians, constitutes
“explicit official recognition” (maj. opn., ante, at pp. 68, 69) of “this state’s
current policies and conduct regarding homosexuality,” i.e., “that gay individuals
are entitled to the same legal rights and the same respect and dignity afforded all
other individuals and are protected from discrimination on the basis of their sexual
orientation.” (Maj. opn., ante, at pp. 67-68, fn. omitted.) “In light of this
recognition,” the majority concludes, “sections 1 and 7 of article I of the
California Constitution cannot properly be interpreted to withhold from gay
individuals” full equality of rights with heterosexual persons, including the right to
same-sex legal unions that are fully equivalent —including in name — to those of
opposite-sex partners. (Id., at p. 69; see also id., at pp. 81, 101-119.)

This analysis is seriously flawed. At the outset, it overlooks the most
salient facts. The Legislature has indeed granted many rights to gay and lesbian
individuals, including the right to enter same-sex legal unions with all the
substantive rights and benefits of civil marriage. As the majority elsewhere
acknowledges, however, our current statutory scheme, which includes an initiative
measure enacted by the People, specifically reserves marriage itself for oppositesex
unions. (Fam. Code, §§ 300, 308.5.) Under these circumstances, it is difficult
to see how our legislative history reflects a current community value in favor of
same-sex marriage that must now be enshrined in the Constitution.7

Of even greater concern is the majority’s mode of analysis, which places
heavy reliance on statutory law to establish a constitutional right. When a pattern
of legislation makes current community values clear, the majority seems to say,
those values can become locked into the Constitution itself.8

Of course, only the People can amend the Constitution; the Legislature has
no unilateral power to do so. (Cal. Const., art. XVIII.) However, the effect of the
majority’s reasoning is to suggest that the Legislature can accomplish such
amendment indirectly, whether it intends to do so or not, by reflecting current
community attitudes in the laws it enacts.

The notion that legislation can become “constitutionalized” is mischievous
for several reasons. As indicated above, it violates the constitutional scheme by
which only the People can amend the state’s charter of government. It abrogates
the legislative power to reconsider what the law should be as public debate on an
issue ebbs and flows. And, for that very reason, it may discourage efforts to pass
progressive laws, out of fear that such efforts will ultimately, and inadvertently,
place the issue beyond the power of legislation to affect.

As applied in this case, the majority’s analysis has also given the
Legislature, indirectly, a power it does not otherwise possess to thwart the
People’s express legislative will. As noted above, under article II, section 10,
subdivision (c) of the California Constitution, “[t]he Legislature may amend or
repeal . . . an initiative statute by another statute that becomes effective only when
approved by the electors unless the initiative statute permits amendment or repeal
without their approval.” (Italics added.) Family Code section 308.5, adopted by
Proposition 22, includes no provision allowing its unilateral repeal or amendment
by the Legislature.

According to the majority, however, the Legislature’s adoption of
progressive laws on the subject of gay and lesbian rights, including the DPA,
makes it impossible not to recognize a constitutional right to same-sex legal
unions with full equivalency to opposite-sex legal unions. This development, the
majority ultimately concludes, requires the invalidation of Family Code section
308.5. In other words, in the majority’s view, the Legislature’s own actions have,
by indirection, caused this initiative statute to be erased from the books. To say
the least, I find such a constitutional approach troubling.9

Other grounds advanced by the majority for its claim of a fundamental right
are equally unpersuasive. The majority accepts plaintiffs’ unconvincing claim that
they seek no new “right to same-sex marriage” (maj. opn., ante, at p. 51), but
simply a recognition that the well-established right to marry one’s chosen partner
is not limited to those who wish to marry persons of the opposite sex. However,
by framing the issue simply as whether the undoubted right to marry is confined to
opposite-sex couples, the majority mischaracterizes the entitlement plaintiffs
actually claim. The majority thus begs the question and violates the requirement
of “ ‘careful description’ ” that properly applies when a court is asked to break
new ground in the area of substantive due process. (Glucksberg, supra, 521 U.S.
702, 721-722.)

Though the majority insists otherwise, plaintiffs seek, and the majority
grants, a new right to same-sex marriage that only recently has been urged upon
our social and legal system. Because civil marriage is an institution historically
defined as the legal union of a man and a woman, plaintiffs could not succeed
except by convincing this court to insert in our Constitution an altered and
expanded definition of marriage — one that includes same-sex partnerships for the
first time. By accepting that invitation, the majority places this controversial issue
beyond the realm of legislative debate and substitutes its own judgment in the
matter for the considered wisdom of the People and their elected representatives.
The majority advances no persuasive reason for taking that step.

In support of its view that marriage is a constitutional entitlement without
regard for the genders of the respective partners, the majority cites the many
California and federal decisions broadly describing the basic rights of personal
autonomy and family intimacy, including the right to marry, procreate, establish a
home, and bring up children. (See maj. opn., ante, at pp. 49-65.) However, none
of the cited decisions holds, or remotely suggests, that any right to marry
recognized by the Constitution extends beyond the traditional definition of
marriage to include same-sex partnerships.

Certainly Perez v. Sharp (1948) 32 Cal.2d 711 (Perez) does not support the
majority’s expansive view. There we struck down racial restrictions on the right
of a man and a woman to marry. But nothing in Perez suggests an intent to alter
the definition of marriage as a union of opposite-sex partners. In sum, there is no
convincing basis in federal or California jurisprudence for the majority’s claim
that same-sex couples have a fundamental constitutional right to marry.10

In a footnote, the majority insists that, though same-sex couples are
included within the fundamental constitutional right to marry, the state’s absolute
bans on marriages that are incestuous (Fam. Code, § 2200; see Pen. Code, § 285),
or nonmonogamous (Pen. Code, § 281 et seq.; Fam. Code, § 2201) are not in
danger. Vaguely the majority declares that “[p]ast judicial decisions explain why
our nation’s culture has considered [incestuous and polygamous] relationships
inimical to the mutually supportive and healthy family relationships promoted by
the constitutional right to marry. [Citations.]” (Maj. opn., ante, at p. 79, fn. 52.)
Thus, the majority asserts, though a denial of same-sex marriage is no longer
justified, “the state continues to have a strong and adequate justification for
refusing to officially sanction polygamous or incestuous relationships because of
their potentially detrimental effect on a sound family environment. [Citations.]”
(Id, at pp. 79-80.)

The bans on incestuous and polygamous marriages are ancient and deeprooted,
and, as the majority suggests, they are supported by strong considerations
of social policy. Our society abhors such relationships, and the notion that our
laws could not forever prohibit them seems preposterous. Yet here, the majority
overturns, in abrupt fashion, an initiative statute confirming the equally deeprooted
assumption that marriage is a union of partners of the opposite sex. The
majority does so by relying on its own assessment of contemporary community
values, and by inserting in our Constitution an expanded definition of the right to
marry that contravenes express statutory law.

That approach creates the opportunity for further judicial extension of this
perceived constitutional right into dangerous territory. Who can say that, in ten,
fifteen, or twenty years, an activist court might not rely on the majority’s analysis
to conclude, on the basis of a perceived evolution in community values, that the
laws prohibiting polygamous and incestuous marriages were no longer
constitutionally justified?

In no way do I equate same-sex unions with incestuous and polygamous
relationships as a matter of social policy or social acceptance. California’s
adoption of the DPA makes clear that our citizens find merit in the desires of gay
and lesbian couples for legal recognition of their committed partnerships.
Moreover, as I have said, I can foresee a time when the People might agree to
assign the label marriage itself to such unions. It is unlikely, to say the least, that
our society would ever confer such favor on incest and polygamy.

My point is that the majority’s approach has removed the sensitive issues
surrounding same-sex marriage from their proper forum — the arena of legislative
resolution — and risks opening the door to similar treatment of other, less
deserving, claims of a right to marry. By thus moving the policy debate from the
legislative process to the court, the majority engages in faulty constitutional
analysis and violates the separation of powers.

I would avoid these difficulties by confirming clearly that there is no
constitutional right to same-sex marriage. That is because marriage is, as it always
has been, the right of a woman and an unrelated man to marry each other.
From this conclusion, it follows, for substantive due process purposes, that
the marriage statutes are valid unless unreasonable or arbitrary (see, e.g.,
Kavanau v. Santa Monica Rent Control Bd. (1997) 16 Cal.4th 761, 771), and are
not subject to the strict scrutiny that applies when a statute infringes a fundamental
right or interest. As I discuss below, California’s preservation of the traditional
definition of marriage is entirely reasonable. Accordingly, I would reject
plaintiffs’ due process claim.

Besides concluding that Family Code sections 300 and 308.5 are subject to
strict scrutiny as an infringement on the fundamental state constitutional right to
marry, the majority also independently holds that such scrutiny is required under
the equal protection clause of the California Constitution. This is so, the majority
declares, because by withholding from same-sex legal unions the label that is
applied to opposite-sex legal unions, the scheme discriminates on the basis of
sexual orientation, which the majority now deems to be a suspect classification.

I find this analysis flawed at several levels. For two reasons, I would reject
plaintiffs’ equal protection claim at the threshold. And even if that were not
appropriate, I disagree that sexual orientation is a suspect classification. Hence, as
with the majority’s due process theory, I would not apply strict scrutiny, and
would uphold the statutory scheme as reasonable. I explain my conclusions.

“The general rule is that legislation is presumed to be valid and will be
sustained if the classification drawn by the statute is rationally related to a
legitimate state interest. [Citations.] When social or economic legislation is at
issue, the Equal Protection Clause allows the States wide latitude, [citations], and
the Constitution presumes that even improvident decisions will eventually be
rectified by the democratic processes.” (Cleburne v. Cleburne Living Center, Inc.
(1985) 473 U.S. 432, 440, italics added (Cleburne).)

“The initial inquiry in any equal protection analysis is whether persons are
‘similarly situated for purposes of the law challenged.’ [Citation.]” (In re
Lemanuel C. (2007) 41 Cal.4th 33, 47.) A statute does not violate equal protection
when it recognizes real distinctions that are pertinent to the law’s legitimate aims.
(E.g., People v. Smith (2007) 40 Cal.4th 483, 527; Cooley v. Superior Court
(2002) 29 Cal.4th 228, 253; Coleman v. Department of Personnel Administration
(1991) 52 Cal.3d 1102, 1125; Purdy & Fitzpatrick v. State of California (1969)
71 Cal.2d 566, 578; see Cleburne, supra, 473 U.S. 432, 441.) In such cases,
judicial deference to legislative choices is consistent with “our respect for the
separation of powers.” (Cleburne, supra, at p. 441.)

Though the majority insists otherwise (see maj. opn., ante, at p. 83, fn. 54),
I agree with Justice Corrigan that same-sex couples and opposite-sex couples are
not similarly situated with respect to the valid purposes of Family Code sections
300 and 308.5. As Justice Corrigan indicates, the state has a legitimate interest in
enforcing the express legislative and popular will that the traditional definition of
marriage be preserved. Same-sex and opposite-sex couples cannot be similarly
situated for that limited purpose, precisely because the traditional definition of
marriage is a union of partners of the opposite sex.

Of course, statutory classifications do not serve legitimate state interests
when adopted for their own sake, out of animus toward a disfavored group. (E.g.,
Romer v. Evans (1996) 517 U.S. 620, 633, 634-635 (Romer); U. S. Dept. of
Agriculture v. Moreno (1973) 413 U.S. 528, 534; see Lawrence, supra, 539 U.S.
558, 582-583 (conc. opn. of O’Connor, J.); see also Cleburne, supra, 473 U.S.
432, 441.) Here, however, the majority itself expressly disclaims any suggestion
“that the current marriage provisions were enacted with an invidious intent or
purpose.” (Maj. opn., ante, at p. 119, fn. 73.) I therefore concur fully in Justice
Corrigan’s conclusion that plaintiffs’ equal protection challenge fails for this
reason alone.

I also disagree with the majority’s premise that, by assigning different
labels to same-sex and opposite-sex legal unions, the state discriminates directly
on the basis of sexual orientation. The marriage statutes are facially neutral on
that subject. They allow all persons, whether homosexual or heterosexual, to enter
into the relationship called marriage, and they do not, by their terms, prohibit any
two persons from marrying each other on the ground that one or both of the
partners is gay. (Cf. Perez, supra, 32 Cal.2d 711, 712-713 [statutes prohibited
marriage between certain partners on the basis of their respective races].)

The marriage statutes may have a disparate impact on gay and lesbian
individuals, insofar as these laws prevent such persons from marrying, by that
name, the partners they would actually choose. But, as we explained in Baluyut v.
Superior Court (1996) 12 Cal.4th 826, a facially neutral statute that merely has a
disparate effect on a particular class of persons does not violate equal protection
absent a showing the law was adopted for a discriminatory purpose. In this regard,
discriminatory purpose “ ‘implies more than intent as volition or intent as
awareness of consequences. See United Jewish Organizations v. Carey [(1977)]
430 U.S. 144, 179 (concurring opinion). It implies that the decisionmaker . . .
selected or reaffirmed a particular course of action at least in part “because of,”
not merely “in spite of,” its adverse effects upon an identifiable group.’
(Personnel Administrator of Mass. v. Feeney [(1979)] 442 U.S. [256,] 279.)”
(Baluyut, supra, at p. 837.)

There is no evidence that when the Legislature adopted Family Code
section 300, and the People adopted Family Code section 308.5, they did so
“ ‘ “because of” ’ ” its consequent adverse effect on gays and lesbians as a group.
On the contrary, it appears the legislation was simply intended to maintain an ageold
understanding of the meaning of marriage. Indeed, California’s adoption of
pioneering legislation that grants gay and lesbian couples all the substantive
incidents of marriage further dispels the notion that an invidious intent lurks in our
statutory scheme. As indicated above, the majority itself expressly disclaims any
suggestion that the laws defining marriage were passed for the purpose of
discrimination. For this reason as well, I believe our equal protection analysis
need go no further.

Even if the distinction were subject to further examination under the equal
protection clause, I disagree that strict scrutiny is the applicable standard of
review. This is because I do not agree with the majority’s decision to hold, under
current circumstances, that sexual orientation is a suspect classification.
The United States Supreme Court has never declared, for federal
constitutional purposes, that a classification based on sexual orientation is entitled
to any form of scrutiny beyond rational basis review. (See Cleburne, supra,
473 U.S. 432, 440-441 [recognizing race, alienage, and national origin as suspect
classifications requiring strict scrutiny review, and gender and illegitimacy as
quasi-suspect classifications requiring “somewhat heightened” review].)11
Moreover, as the majority concedes, its conclusion that sexual orientation is a
suspect classification subject to strict scrutiny contravenes “the great majority of
out-of-state decisions” — indeed, all but one of those cited by the majority. (Maj.
opn., ante, at p. 95, & fn. 60.)12

As the majority also notes, the issue is one of first impression in California.
I find that circumstance highly significant. Considering the current status of gays
and lesbians as citizens of 21st-century California, the majority fails to persuade
me we should now hold that they qualify, under our state Constitution, for the
extraordinary protection accorded to suspect classes.

The concept that certain identifiable groups are entitled to extra protection
under the equal protection clause stems, most basically, from the premise that
because these groups are unpopular minorities, or otherwise share a history of
insularity, persecution, and discrimination, and are politically powerless, they are
especially susceptible to continuing abuse by the majority. Laws that single out
groups in this category for different treatment are presumed to “reflect prejudice
and antipathy — a view that those in the burdened class are not as worthy or
deserving as others. For these reasons, and because such discrimination is
unlikely to be soon rectified by legislative means,” the deference normally
accorded to legislative choices does not apply. (Cleburne, supra, 473 U.S. 432,
440, italics added; see also San Antonio School District v. Rodriguez (1973)
411 U.S. 1, 28 [noting relevance, for purposes of identification as suspect class,
that group “is relegated to such a position of political powerlessness as to
command extraordinary protection from the majoritarian political process”].)

Recognizing that the need for special constitutional protection arises from
the political impotence of an insular and disfavored group, several courts holding
that sexual orientation is not a suspect class have focused particularly on a
determination that, in contemporary times at least, the gay and lesbian community
does not lack political power. (High Tech Gays, supra, 895 F.2d 563, 574;
Conaway v. Deane, supra, 932 A.2d 571, 609-614 [same-sex marriage];
Andersen v. State, supra, 138 P.3d 963, 974-975 [same].)

In California, the political emergence of the gay and lesbian community is
particularly apparent. In this state, the progress achieved through democratic
means — progress described in detail by the majority — demonstrates that,
despite undeniable past injustice and discrimination, this group now “ ‘is
obviously able to wield political power in defense of its interests.’ ” (Maj. opn.,
ante, at p. 98, quoting the Attorney General’s brief.).

Nor are these gains so fragile and fortuitous as to require extraordinary state
constitutional protection. On the contrary, the majority itself declares that recent
decades have seen “a fundamental and dramatic transformation in this state’s
understanding and legal treatment of gay individuals and gay couples” (maj. opn.,
ante, at p. 67), whereby “California has repudiated past practices and policies that
denigrated the general character and morals of gay individuals” and now
recognizes homosexuality as “simply one of the numerous variables of our
common and diverse humanity” (ibid.). Under these circumstances, I submit, gays
and lesbians in this state currently lack the insularity, unpopularity, and
consequent political vulnerability upon which the notion of suspect classifications
is founded.

The majority insists that a determination whether a historically disfavored
group is a suspect class should not depend on the group’s current political power.
Otherwise, the majority posits, “it would be impossible to justify the numerous
decisions that continue to treat sex, race, and religion as suspect classes.” (Maj.
opn., ante, at p. 99. fn. omitted.)

I do not quarrel with those decisions. At the times suspect-class status was
first assigned to race, and in California to sex and religion, there were ample
grounds for doing so. They may well still exist in some or all of those cases.
Moreover, I do not suggest that once a group is properly found in need of
extraordinary protection, it should later be “declassified” when circumstances
change.

I only propose that, when, as here, the issue is before us as a matter of first
impression, we cannot ignore current reality. In such a case, we should consider
whether, despite a history of discrimination, a particular group remains so
unpopular, disfavored, and susceptible to majoritarian abuse that suspect-class
status is necessary to safeguard its rights. I would not draw that conclusion here.
Accordingly, I would apply the normal rational basis test to determine
whether, by granting same-sex couples all the substantive rights and benefits of
marriage, but reserving the marriage label for opposite-sex unions, California’s
laws violate the equal protection guarantee of the state Constitution. By that
standard, I find ample grounds for the balance currently struck on this issue by
both the Legislature and the People.

First, it is certainly reasonable for the Legislature, having granted same-sex
couples all substantive marital rights within its power, to assign those rights a
name other than marriage. After all, an initiative statute adopted by a 61.4 percent
popular vote, and constitutionally immune from repeal by the Legislature, defines
marriage as a union of partners of the opposite sex.

Moreover, in light of the provisions of federal law that, for purposes of
federal benefits, limit the definition of marriage to opposite-sex couples (1 U.S.C.
§ 7), California must distinguish same-sex from opposite-sex couples in
administering the numerous federal-state programs that are governed by federal
law. A separate nomenclature applicable to the family relationship of same-sex
couples undoubtedly facilitates the administration of such programs.

Most fundamentally, the People themselves cannot be considered irrational
in deciding, for the time being, that the fundamental definition of marriage, as it
has universally existed until very recently, should be preserved. As the New
Jersey Supreme Court observed, “We cannot escape the reality that the shared
societal meaning of marriage — passed down through the common law into our
statutory law — has always been the union of a man and a woman. To alter that
meaning would render a profound change in the public consciousness of a social
institution of ancient origin.” (Lewis v. Harris, supra, 908 A.2d 196, 922.)

If such a profound change in this ancient social institution is to occur, the
People and their representatives, who represent the public conscience, should have
the right, and the responsibility, to control the pace of that change through the
democratic process. Family Code sections 300 and 308.5 serve this salutary
purpose. The majority’s decision erroneously usurps it.

For all these reasons, I would affirm the judgment of the Court of Appeal.

BAXTER, J.

I CONCUR:

CHIN, J.