Posted by
Asp on Friday, April 24, 2009 10:29:59 PM
What the Supreme Court really concluded in
In re MARRIAGE CASES
Accordingly, in light of the conclusions we reach
concerning the constitutional questions brought to us for resolution, we determine that the language
of section 300 limiting the designation of marriage to a union “between a man
and a woman” is unconstitutional and must be stricken from the statute,
and that the remaining statutory language must be understood as making the designation
of marriage available both to opposite-sex and same-sex couples. In addition,
because the limitation of marriage to opposite-sex couples imposed by section
308.5 can have no constitutionally permissible effect in light of the constitutional
conclusions set forth in this opinion, that provision cannot stand. Plaintiffs are entitled to the
issuance of a writ of mandate directing the appropriate state officials to take
all actions necessary to effectuate our ruling in this case so as to
ensure that county clerks and other local officials throughout the state, in
performing their duty to enforce the marriage statutes in their jurisdictions,
apply those provisions in a manner consistent with the decision of this court.
Further, as the prevailing parties, plaintiffs are entitled to their costs.
The judgment of the Court of Appeal is reversed, and the matter
is remanded to that
court for further action
consistent with this opinion.
GEORGE, C. J.
As I read the four corners of this holding, utilizing plain
English meanings of the words, what I understand is that The California State
Supreme Court has ordered the Court of Appeals to order the Legislature to
rewrite section 300. Why didn’t The
Court just change the law itself? Perhaps it can’t. Perhaps there
is an issue of Separation of Powers.
CALIFORNIA CONSTITUTION
ARTICLE 4 LEGISLATIVE
SEC. 8.
(b) The Legislature may make no law except by statute and may enact no statute except by bill.
(c) (1) Except as provided in paragraphs (2) and (3) of this subdivision, a statute enacted at a regular session shall go into effect on January 1 next following a 90-day period from the date of enactment of the statute
SEC. 9. A statute shall embrace but one subject, which shall be expressed in its title. If a statute embraces a subject not expressed in its title, only the part not expressed is void. A statute may not be amended by reference to its title. A section of a statute may not be amended unless the section is re-enacted as amended.
SEC. 10. (a) Each bill passed by the Legislature shall be presented to the Governor. It becomes a statute if it is signed by the Governor. The Governor may veto it by returning it with any objections to the house of origin, which shall enter the objections in the journal and proceed to reconsider it. If each house then passes the bill by rollcall vote entered in the journal, two-thirds of the membership concurring, it becomes a statute.
Now, were I a wise-guy undergraduate, I might entertain the
“what if” scenario: What is the state of the law between the Supreme Court
holding and when the Legislature actually changes the law? What happens if the Legislature refuses to
act? Can the Executive order the law be
enforced as if it had been changed?
This is why lawyers make the big bucks. Just because the code says a law reads one
way doesn’t mean that it is so. Lawyers
next need to look at case law to see if the law has been changed and the law
books haven’t. Then they need to find
the most current case to see if prior rulings have been modified or
overturned. And what of all the other
references in the Code and the California Code of Regulations?
In the Code, I have found 133 references to wife, 129 to
husband, and 107 to domestic partner.
In the California Code of Regulations, I have found 85
references to wife, 76 to husband, and 31 to domestic partner.
A global find and replace will not do the job. Each section needs to be read and evaluated
to determine the appropriate modification. This should not take more than a month. Then the changes need to be written up in a
bill, the bill enacted by the legislature and presented to the Governor or
approval.
No one I know of ever said it would be easy.