The California State Supreme Court, lead by Chief Justice Ron George, repealed California law stating that marriage is between a man and a woman as set forth by both the Legislature and the people through the passage of Prop. 22.< ?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
The Court’s ruling is breathtaking for its overreach. Using words like “dignity†(23 times), “liberty†(34 times), and “privacy†(37 times) to describe same-sex partners full right to marry, the Court overturned millennia of experience and more than 150 years of state law precedence. (For the ruling, see: http://www.courtinfo.ca.gov/opinions/documents/S147999.PDF.) In so doing, their strained justifications threw the door wide open to polygamous and incestuous marriage. How? By using the flawed logic that marriage is none of the government’s business insofar as marriage should be afforded to all to afford people privacy, liberty and dignity. The same weak logic can be applied to the “plural†marriages of the Fundamentalist LDS cult in Texas or to a devout Muslim citizen of Saudi Arabia who wishes to emigrate to California with his four wives. In fact, due to the equal protection provisions of the Fourteenth Amendment, both a Fundamentalist LDS cult member and a devout Muslim could argue that their First Amendment right to free exercise of religion are being violated by any restriction on polygamy “after all, their ‘dignity,’ ‘liberty,’ and ‘privacy’†would be violated otherwise.
Allow me to close my comments with two political observations.
First, the Court’s sweeping ruling is likely to ignite support for the California Marriage Protection Act, a constitutional ballot initiative that would overrule the Court’s decision that should appear on the ballot this November. (See: http://www.protectmarriage.com/.) This, in turn, may have an impact on other California races, from the President on down to the legislative races. In this, liberal Democrats should be wary of what they wish for!
Second, I find it ironic to see commentators describe the Court as conservative since the majority of its members were appointed by Republican governors. Lest we forget, there is a simmering divide in the Republican Party over whether the label “conservative†includes social policy, or only tax and fiscal policy. Chief Judge Ron George was first appointed by Gov. Deukmejian, then appointed chief justice by Gov. Wilson. Justice Ron George has had a long history of very liberal rulings long before the same sex marriage ruling. In fact, back in 1997, I drafted a resolution opposing Justice Ron George for his election in 1998. It passed the Orange County Republican Party Central Committee, then stalled when it hit the California Republican Party. It was argued that Justice George was a Republican, so the Party should support him. The reason for my opposition to Judge George in 1997 was his ruling in American Academy of Pediatrics v. Lungren which overturned a California law requiring parental consent for minors to obtain abortions (“privacy†of the minor girl was the reason cited in that case too). Other bad rulings already made by Justice George at that time included: a pro-criminal decision in People v. Superior Court (Romero), three anti-private property rights decisions in Ehrlich v. Culver City, Smith v. Fair Employment and Housing Commission, and Alcarez v. Vece, a pro-public union decision in Loder v. City of Glendale, and an anti-business decision in Stevenson v. Superior Court.
Of course, there is the remote possibility that Judge George’s terrible ruling really is a Republican plot in the vast right wing conspiracy to boost conservative turnout so much that McCain wins California and is elected President in 2008, stranger things have happened in the world of politics.
Just for old time’s sake, I’ve reprinted below the 1997 resolution that passed the OC Republican Party Central Committee only to fail at the California Republican Party convention. It was authored by me and my long time friend, Fred Whitaker, a respected Orange attorney who should someday be on the California Supreme Court.
*************************************
A Resolution Calling to Oppose Confirmation of Certain California Supreme Court Judges.
WHEREAS, The California Supreme Court overturned a 1987 law requiring parental consent for minors to obtain abortions.
WHEREAS, The law in question was a carefully written to meet the U.S. Supreme Court’s strict guidelines for valid parental consent legislation.
WHEREAS, Chief Justice George, Justice Chin, Justice Kennard, and Justice Werdegar ruled that the parental consent law violated the “autonomy privacy rights” of minor girls. Further that a minor girl’s uninhibited right to an abortion “is so central to the preservation of her ability to define and adhere to her ultimate values regarding the meaning of human existence and life, “we conclude that a minor who is pregnant has a protected privacy interest under the California Constitution in making the decision whether to continue or to terminate her own pregnancy.” Yet, almost a year earlier, the court ruled that the same law was valid.
WHEREAS, Lower courts in California blocked enforcement soon after its passage in 1987, claiming that girls as young as 13 or 14 possess the necessary maturity and rationality to make informed decisions about abortion. Yet, under the law do not have maturity and rationality for ear piercing and medical treatment without parental consent until age 18.
WHEREAS, These arguments, aside from ignoring common sense and human experience, are irrelevant to the issue of constitutionality which is supposed to be the only reason for the court to overturn legislation.
WHEREAS, A parent’s right to direct his or her child’s upbringing is among the most basic of human rights.
WHEREAS, Justice Mosk, in dissent, pointed out that according to the ruling, the privacy rights for minor girls would reach to those who were as young as nine years old.
WHEREAS, Justice Brown, noted in her dissent that the California Constitution protects “a parent’s interest in directing his child’s upbringing” and that the “liberty interest of a minor is qualitatively different than that of an adult, being subject both to reasonable regulation by the state and to an extent not permissible with adults.”
WHEREAS, It is illogical and inconsistent to require that minors obtain parental permission for aspirin at school, tattoos, tanning salons, body piercing, drivers’ licenses, etc., but not for a dangerous and invasive procedure like an abortion.
WHEREAS, This Court’s judicial activism is reminiscent of the Rose Bird Court when, the rule of law in California succumbed to the whim of four justices occupying seats on its highest court.
THEREFORE, BE IT RESOLVED that the California Republican Party joins the Republican Party of Orange County in calling upon itself and all those of good will to actively oppose confirmation for any California State Supreme Court Justice who voted to overturn the 1987 law requiring parental consent for minor girls to obtain abortions.
Cosponsors:
Fred M. Whitaker, Member
Chuck DeVore, Member
Chuck DeVore
California State Assemblyman, 70th District
www.ChuckDeVore.com
Transcription of Phyllis Schlafly’s Testimony
Before Arkansas State Agency & Governmental Affairs House Committee
on ERA Bill, (HJR1002)February 7, 2007
(In less than ten minutes)
Schlafly Bio: Phyllis Schlafly was recently named one of the one hundred most important women of the twentieth century by the Ladies’ Home Journal. She is a Constitutional lawyer and president of Eagle Forum which has chapters in every state. Her syndicated column appears in one hundred newspapers, her radio commentaries are heard daily on 460 stations, and her radio talk show, "Phyllis Schlafly Live" is heard weekly on forty stations. Schlafly is the author of twenty books and has testified before more than fifty Congresisonal and State Legislative committees. The mother of six children, Mrs.Schlafly was the 1992 Illinois Mother of the Year. Friends and foes of Schlafly give her credit for galvanizing the grassroots movement that defeated ERA in its ten-year battle from 1972to 1982 when Presidents of both parties and the media had all endorsed it. [And all these feats were accomplished without an Equal Rights Amendment]
Transcription of Testimony:
Mr. Chairman and members of the Committee: Thank you for allowing us to hear a non constituent. I have a special place in my heart for Arkansas because my husband’s family owned the Mountain Valley Spring in Hot Springs from 1900 to 1987; and my husband brought me there on our honeymoon. I still drink Moutain Valley water, now owned by Arkansas people, and it is the finest water in the world. So thank you.
Now you have heard about an hour and half of advocacy for the Equal Rights Amendment; but I note that you didn’t hear about one single law, federal or state, that discriminates against women that this amendment will remedy. I note that you didn’t hear a single benefit that women will get out of the Equal Rights Amendment. This thing was debated for 10 years, from 1972 to 1982; and it was rejected by fifteen states outright and five more that rescinded and changed their mind.
I think the main reason it was rescinded and rejected was that it is a fraud. It pretends to help women, but it does nothing for women; and they are not able to show any benefit, any correction of law that the Equal Rights Amendment will do. You know that the amendment does not put women in the Constitution, and it does not put gender in the constitution. It puts sex in the Constitution. Now we are at the mercy of the judges. The Equal Rights Amendment does not say whether it is the sex you are or the sex you do. We leave all those decisions up to the judges.
Now in looking for what the Equal Rights Amendment will do, I look to the best top authority on that subject. And the leading lawyer in favor of the Equal Rights Amendment those years was Ruth Bader Ginsburg who is now on the United States Supreme Court. She wrote a book, a 230 page book, to tell exactly how the Equal Rights Amendment will affect federal law; and she is very explicit in it. I think there probably is no higher authority about what it will actually do.
What it will do is make all our laws sex neutral. Now we have the matter of the draft. Now nobody denies that if you have strict scrutiny you are going to have women not only subject to the draft, when and if there is a draft, but also subject to combat. We know women are exempted from infantry combat and submarines today. Those differences are there. Now a very powerful Democrat today, Congressman Charlie Rangel has got his bill to reinstate the draft; and, of course, it is sex neutral. I am going to do everything I can to prevent his bill from passing. But if it passed, there is no question about the effect of ERA. It would treat women exactly the same as men, and women do not want to be treated the same as men in the military and in combat.
Now among other things that Ruth Bader Ginsburg says in this, and what she doesn’t say, is that it is going to have no effect on the Constitution itself because the Constitution is already sex neutral. The Constitution does not say men are created equal. That is in the Declaration of Independence. Fortunately you are not amending the Declaration of Independence. We are talking about the Constitution. And the Constitution uses exclusively sex neutral terms, we the people, citizens, residents, inhabitants, president, ambassador, representative. Women have every Constitutional right that men have.
Also this book makes clear that it has nothing to do with employment. It is not going to give women a raise or make them equal in the board rooms or in the legislatures because our employment laws are already sex neutral; and this book makes that clear.
However, there are some differences. One of the differences is the effect it would have on homemakers in this country. One of the most offensive things that Ruth Bader Ginsburg says in this book is that the concept of dependent wife must be eliminated from the code. What does that mean? The social security system rests on the concept of the dependent wife. I get my social security based on my husband’s income over the years, and I am sure that is true of many women here today. Social security is a very pro-women institution because it gives the benefit to the dependent wife, the dependent wife who is not, herself, in the workforce. According to Ruth Bader Ginsburg, that is a concept that must be eliminated from the code under ERA. This book was written to describe how ERA will affect federal laws.
And then she [Ruth Bader Ginsburg] goes into how it will change the words when you say you can’t discriminate on account of sex. She gives a whole list of words that will have to be changed. And among the words that would have to be deleted from the federal code are husband and wife. Now that is a direct attack on the Defense of Marriage Act, DOMA, which says that marriage is the union of a man and a woman as husband and wife. Feminists don’t like that. They want to put us into a sex neutral world, and it certainly would have a direct effect on the Federal DOMA.
She [Ruth Bader Ginsburg] makes very clear that the ERA would require treating sex like we treat race. That is one of their arguments. And it would require everything that is separated according to sex to be sex integrated. Now, she specifically says that this would include the Scouts. It is discriminatory to have Girl Scouts and Boy Scouts. They would have to be put together. She says fraternities and sororities would have to be combined. She says even prisons would have to be sex integrated.
There are all kinds of mischief she [Ruth Bader Ginsburg] has in this book under her name, in a book published and paid for by the US government. She makes arguments that I never dared to make, that it will wipe out the laws against prostitution and the laws against bigamy – that it would reduce the age of consent to 12; She even goes after Mother’s Day because that would be sex discriminatory.
Of course, in the matter of marriage, it would open up the courts to all kinds of litigation by the gay rights movement which is working very hard on every type of judge they can find to give them whatever they want to have. Again, the Equal Rights Amendment says you can’t discriminate on account of sex, and that is what you are talking about. If you deny a marriage license to a man and a man, you have discriminated on account of sex. All of the highest legal authorities from Harvard and Yale have all said that the equal rights amendment would okay same sex marriage.
I was on the platform with the great Senator Sam Irvin, considered then the leading legal authority in the Senate, the great Watergate Senator, who said the only people who would profit by the Equal Rights Amendment would be the homosexuals; and you could have all kinds of litigation on that.
On the matter of abortion, we know that the New Mexico case is very clear. The argument of the feminists is abortion is something that happens only to women; therefore, if you deny any rights or any funding on abortion, you have discriminated on account of sex within the meaning of the Equal Rights Amendment. Now we do not have nineteen states with state ERA’s. There are only six of the states that have ERA’s in the same language as the proposed federal ERA. One of those is New Mexico, and that is why New Mexico said that it is discrimination to deny funding for abortion in New Mexico.
Another one of those states is Hawaii, which is where they okayed same sex marriage based on the state’s ERA. Hawaii had to pass another Constitutional amendment saying in effect, "No, we didn’t mean that."
So there are all kinds of problems that come along, and I think it would move the whole area of family law to the federal government because of Section II. Section II says the Congress will have the power to enforce it by appropriate legislation and there are all kinds of family property laws, divorce, child custody, that would then become federal matters under the ERA.
This country wisely rejected it after long debate, and I think what it comes down to is how the judges interpret it. And we have no confidence – you asked for assurance of what the judges are going to do – we don’t know what they are going to do.
But in any event, I think the country made a very good decision in voting it down in a ten-year battle that went on all across the country; and I hope that we a leave it decently buried.
Thank you Mr. Chairman, for listening.
Chairman – Thank you very much and without pausing said, Seeing there are no questions (then goes to next witness)
The committee defeated the ERA bill by one vote, 10 to 10. They needed 11 votes to get it out of committee.
This article can be read online at this link: http://www.wpaag.org/ERA%20-%20Schlafly%20Testimony%20in%20AR%202-7-07.htm