Today Liberty Counsel filed a petition on behalf of Campaign for California Families requesting the California Court of Appeal to stay the issuance of marriage licenses to same-sex couples following remand from the California Supreme Court. A stay would delay the implementation of the California Supreme Court’s orders in the May 15 ruling.
On May 16 at 5:00 p.m. PT, the Court of Appeal will regain jurisdiction over the same-sex marriage cases. The Supreme Court decision directs the Court of Appeal to take "further action consistent with this opinion." The Supreme Court did not and cannot actually remove the language from the statutes, which must be done by the legislature. See Kopp v. Fair Pol. Practices Comm. (1995) 11 Cal. 4th 607, 675 (Werdegar, J., concurring)(Stating that the power to write laws belongs to the people and political branches of government, not the judiciary). Moreover, the Supreme Court’s decision addressed only two statutes in §300 and §308.5 – Proposition 22). There are many more relevant statutes that were not before the Supreme Court and were not within that Court’s power to address. The Supreme Court cannot rewrite statutes and cannot remove language from the statutes; such must be done by the legislature. The power to write laws belongs ! to the people and political branches of government, not the judiciary.
Many Family Code sections which govern state agencies and government employees were not addressed and are still binding. The Supreme Court held in an earlier related case that local officials cannot refuse to enforce those statutory provisions based upon a belief that they are also unconstitutional. See Lockyer v. City and County of San Francisco, (2004) 33 Cal. 4th 1055, 1074.
Since neither the Supreme Court nor the Court of Appeal has declared unconstitutional the myriad of other statutes regarding marriage, local government officials do not have the power to issue marriage licenses until the legislature addresses these statutes. Liberty Counsel asks that the Court of Appeal order that no marriage licenses be issued to same-sex couples until the language cited by the Supreme Court is stricken by the legislature and until there is a judicial determination that the other statutes are unconstitutional.
Liberty Counsel also argues that same-sex marriage licenses should not be issued until after the November 2008 general election, in order to preserve the people’s right to vote on the Marriage Protection Act.
The Supreme Court’s decision has created a mess of the law regarding marriage. Hundreds of laws apply to marriage. The Supreme Court addressed only two. It is inconceivable that by striking down two statutes, the myriad of other marriage laws are automatically changed. They are not. The legislature must act before same-sex marriage is authorized, and the people should be permitted to vote before the legislature acts.