Clearly because this is the creation of a new right that never existed before.
The citizens of CA spoke on this by referendum with a 22 point landslide victory stating that marriage was between one man and one woman. Unfortunately, when you can't win in the public square, you can always ignore the will of the people by getting four robed tyrants to impose your vision on the rest of society. Really, it's much easier to just resort to tyrany than convince your fellow citizens, isn't it?

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The Lord is my light and my salvation; whom shall I fear? The Lord is the strength of my life; of whom shall I be afraid? - Psalm 27:1

In 2000, Californians voted on Proposition 22 to define marriage as one man and one woman. The legislature is constitutionally prohibited from amending or repealing initiative measures unless the voters approve the amendment or unless the measure contains language allowing amendment or repeal by the legislature. Neither is the case.

The California Court majority argued that in passing subsequent legislation allowing for civil unions, the legislature had "invalidated" the statutory changes from Proposition 22, which the legislature clearly cannot do. In essence, they elevated the subsequent legislation to the level of a constitutional amendment, giving it the power to undo an initiative statute.

(It appeared to me that the majority actually came up with an argument that the civil union statutes were invalid. After all, if they conflict with an initiative statute, and if the legislature can't amend an initiative statute without going back to the voters, the implication is that the civil union law are invalid!)

In light of the legislature's repeated affirmation of marriage as one woman and one man, and the referendum doing the same, the court's claim that the effect of such legislation is to create the right stands on pretty weak ground. While I don't anticipate the kind of voter anger that led to the recall of Supreme Court Chief Justice Rose Bird (who overturned dozens of death-penalty cases), I would guess the court's action will spur voters to pass the anti-same-sex-marriage amendment pending for this November's election.

I think, ultimately, the decision to pursue a right to same-sex marriage through the courts rather than through the legislatures will end up not ensuring the right to same-sex marriage but rather inspiring even more states to pass amendments denying it.

In this case, you should remember that the CA legislature did pass same-sex marriage - twice! - and it was vetoed by the governor, who said that the courts were the place to decide the issue.

But what about "the tyranny of the majority", Tanny? That exists too, and that's why courts are very much undemocratic.

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Sandy Smith, Exile on Market Street, Philadelphia
"Many a small thing has been made large by the right kind of advertising." --Mark Twain, A Connecticut Yankee in King Arthur's Court

Without commenting on the specifics of this case, on a general level I will agree that the courts are there to protect the rights of citizens against laws that are created to revoke them, regardless if the majority wants it or not.

It is a protection against the majority creating second class citizens via legislation or executive power.

Now, of course, that all leads to HOW they deal with such pieces of legislation. But yes, the "undemocratic" position of the courts is necessary.

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Ward 29 Chairman - Republican

Sarah Palin: http://www.google.com/search?source=...=Google+Search
Sarah Palin is the Governor of Alaska ... read the link.

CA Supreme Court Approves 'Gay Marriage'

This issue is a red herring to some degree...most Americans aren't really interested what another person does in his/her bedroom...'civil partnerships' are already recognized in almost all states as it relates to financial matters...what this issue does illustrate is the collapse of moral values and common sense in present day American society...Marriage is the union of a man & a woman, and the fruit of this union is the birth of children or the continuation of the human race...a lifestyle centered on anal intercourse produces no children, and thus leads to nothing but a degeneration...it is a form of nihilsm...certain individuals might find solace in the intimate companionship of a person of the same sex, but this is not marriage, and there should be no special laws created referring to this as marriage...where IS our common sense?

This is why the election of 2000 is so important. It shows how the majority should not be allowed to exercise power.

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All I said was that intellectuals are like the Mafia, they only kill their own.

Woody Allen
Stardust Memories

Actually, he said the courts or a vote of the people should decide the issue, since the legislature couldn't amend or repeal Prop. 22 on its own. In California, the legislature is uniquely enjoined from undoing legislative initiatives approved by statewide referendum.

Politically, though, it's a right that should be secured in the legislature, not made up by a court. Here is a good summary of some of the problems with the decision and its likely political fallout by a gay supporter of same-sex marriage.