The California Supreme Court’s decision to uphold Proposition 8 signifies a major victory, not only for the people of California and for proponents of traditional marriage, but for the democratic tradition as well.  With Proposition 8—a constitutional amendment defining marriage as between a man and a woman—Californians demonstrated their refusal to be bullied by the bench; they harnessed the power of the ballot box to reverse a flagrant act of judicial activism.

It all began in 2000 when, to eliminate any legal ambiguity, California voters passed Proposition 22, which added a provision to the state civil code explicitly defining marriage as a civil institution between a man and a woman.  Governor Schwarzenegger, himself a supporter of gay marriage rights, twice upheld the constitutional validity of Proposition 22 (and thus, the will of the electorate) by vetoing legislative attempts to legalize gay marriage.  Sadly, San Francisco Mayor Gavin Newsom proved incapable of such restraint.  In 2004, he decided that his personal feelings about gay marriage trumped the law and began illegally issuing marriage licenses to gay couples in the city.

Enter the California Supreme Court.  It ordered Mayor Newsom to stop issuing marriage licenses to gay couples in violation of current law, but also suggested that supporters of gay marriage seek a remedy by challenging the constitutionality of Proposition 22 in court.  Homosexual activists heeded that suggestion and a judicial challenge made its way back to California’s highest court.  On May 15, 2008, in an act of blatant judicial activism, the justices declared Proposition 22 unconstitutional, based upon their own definition of marriage and a twisting of the provisions of the California Constitution.  Their ruling opened the door for the “marriage” of tens of thousands of gay couples, notwithstanding the clear definition of marriage adopted by the majority of Californians.

When judges take it upon themselves to exceed the bounds of their office and usurp the role of the legislative body (and that of the people in guiding it), they are guilty of legislating from the bench.  When they create new legislation by stripping the Constitution of its original intent and reinterpreting it to create new “fundamental rights,” they are engaging in rank judicial activism.  When they hold themselves up as barometers of political correctness and sociocultural “empathy,” they eschew the integrity of the bench in favor of the romance of the activist.  In doing so, they abandon their rightful role and undermine the respect with which our courts should be viewed.

Well everyone has their breaking point, and for the citizens of California that point had come.  They were mad as hell and decided they weren’t going to take it anymore.  In dismissing Proposition 22 as unconstitutional, the California Supreme Court sent a message that their own views—the views of a small group of elite lawyers—trumped the will of the people.  Thankfully, the citizens of California refused to tolerate this savaging of their constitutionally-protected rights.  By majority vote, they amended the California Constitution, thereby overturning the court’s wrongheaded decision.  It was the equivalent of a constitutional checkmate.  And this time the court, having been duly admonished, was all but forced to defer to the will of the people.

Supporters of same-sex marriage are, as expected, crying foul.  Having cast same-sex marriage as the civil rights issue of the decade, they view the Court’s decision to uphold Proposition 8 as a gross abridgment of civil rights.  The chronology of bad jurisprudence that has led to the notion that there exists a fundamental “right to marry” is too convoluted to address here, but the larger point is that it is not the court’s place to make law.

America’s founders—knowing that concentrating too much power in any one branch of government would lead to despotism—took great care to separate the powers of government into three distinct, co-equal branches.  These branches were intended to act as checks and balances on one another.  This model was emulated by the states.  Consequently, in America, voters elect legislators to make the laws.  The executive branch is responsible for enforcing the laws; the court’s role is merely to interpret them.  Sadly, over the course of time, judges have usurped powers which do not rightly belong to them.  Meanwhile, the legislative and executive branches have stood idly by, abdicating their responsibility to act as checks and balances.  As a result, the judiciary has become “more equal” than the other branches.

But there is an important lesson to be learned from California’s experience: The Democratic process still works—if the voters will use it.  Proposition 8 worked!  The people of California understood that political power is reposed in the people.  They understood that if the other branches refuse to act to check errant judges, the people must.

Americans concerned about the abridgment of their rights at the hands of out-of-control judges should look to California’s triumph as an example of what is possible when the people are willing to roll up their sleeves and do the hard work of defending democracy.  Americans could do with a remedial civics lesson, so they can relearn that the purpose of the franchise is to serve as a check against the unbridled abuse of government power.  Time and again, a majority of the American people have affirmed the importance of traditional marriage.  It is not the court’s role to question this affirmation, and it is not their place to create laws to advance their personal views about what social “justice” should look like.

The people of California have put their Supreme Court on notice that they will not tolerate activists on the bench.  Hopefully, the rest of America will follow suit.

Ken Connor


Ken Connor is the Chairman of the Center for a Just Society. An esteemed attorney, Connor is affiliated with the law firm of Marks, Balette, & Giessel, a firm nationally known for its successful representation of victims of nursing home abuse and neglect.

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  • motherof4

    What a wonderful article. As a life long Californian I rejoiced on Tuesday when the court upheld Prop.8 as the will of the people. However our fight is not over. The Gay and Lesbian community has vowed to change the constitution during the next election. Prop. 8 has become a rallying point here in California. The margin of the popular vote in favor of Prop. 8 was much smaller than several years before when Prop. 22 was passed. The goal of the Gay and Lesbian community is to turn this into a civil rights issue and they hope in the 2010 election season to guilt and bully people into passing another constitutional amendment repealing Prop. 8.

    Please continue to pray for the triumph of marriage here in California and through out the United States. This is a huge step in the right direction, but we can not grow complacent.

    God Bless

  • Warren Jewell

    It is long, LONG overdue for our executive offices of President and governor to put courts on alert that ‘your bench legislation will not be enforced’; and legislatures to impeach judges at their first offense of infringing on the voters’ representatives role and job as legislators.

  • This fight starts with your state legislators. You must seek out and vote for state legislators who will
    a) not gerrymander their party’s federal legislators into districts with unbreakable majorities;

    b) impeach state judges guilty of such malfeasance in office (and legislating from the bench CERTAINLY counts).

    When item a is achieved, THEN you can start fighting elections where candidates gain support by the merits of their characters, positions and policies, and not merely because they are of the majority party of their district. Then you need federal legislators who will impeach federal judges guilty of such malfeasance in office.

    We Catholics have a decent shot at this, better than most. We’re used to the idea that things will take years and even decades.

  • Here is a pertinent excerpt from the 2009 edition of Treatise on Twelve Lights, chapter one:

    “At the state level in California, the people accomplished their end run via the initiative process. At the national level the closest equivalent is the Article V Convention. Under the fifth Article of the Constitution, such “a convention for proposing Amendments” is called by application of 34 states. The convention is elected in the states, and must refer its proposals back to the states for ratification. A most promising feature is this: it would operate outside the established political structure. Moreover it would be unicameral, and unencumbered by an anti-democratic procedure known as the filibuster….

    “Overcautious patriots bemoan the Article V convention as too radical or unlikely a solution – warning that the convention might “runaway.” Such platitudinous patriots unwittingly seek to guarantee that the republic will sink below the waves of the ongoing crisis.”

    The loving response cannot be to leave the Article V convention, our country’s life line, coiled on the deck of the ship of state. Negligence draped in phony patriotism is like iron pyrite. But genuine gold, the real love of country, is to act courageously so as to rescue the republic from her plight.