Refreshing restraint in California

Amid all the buzz these days about judicial activism, the California Supreme Court - in addressing gay marriage - recently displayed the opposite: judicial restraint. That was refreshing, even though the court's decision was disappointing to those of us who support marriage equality.

Now, two high-profile lawyers who were on opposite sides of one of the most important Supreme Court cases in U.S. history plan to take the issue to the federal courts.

In 2008, the California Supreme Court struck down Proposition 22, a voter-approved ballot initiative denying same-sex couples the right to marry. California became a destination for same-sex couples ready to tie the knot. About 18,000 couples did just that. Last week, the court let stand another initiative - Proposition 8 - which was approved by voters in November and declared marriage as between a man and a woman.

The difference? While Proposition 22 merely declared that "only marriage between a man and a woman is valid or recognized in California," Proposition 8 set out to amend the state Constitution. Opponents sued to block the initiative, insisting the measure was a radical revision of the state Constitution requiring a two-thirds vote by the state Legislature. Supporters claimed it was simply an amendment.

The court agreed with the supporters and upheld the law. The good news is that it also upheld the legality of the marriages that have already been granted. The court was quick to point out that its decision was not about whether the justices agreed with Proposition 8. In fact, given last year's ruling by the same body, it's a good bet that at least four justices didn't agree with the measure. Maybe more. That makes it all the more remarkable - and even commendable - that the justices could set aside their own beliefs and confine themselves to the legal question at hand.

As someone who has come around to supporting gay marriage as a matter of fairness and equality, I voted against Proposition 8. So I have to admit that I was hoping the California Supreme Court would strike down the law. But now, upon reflection, I just don't see how it could have gotten there.

It's easy to condone judicial activism when it's going in a direction you agree with.

In the battle over the nomination of U.S. Appeals Court Judge Sonia Sotomayor to the Supreme Court, we hear conservatives speak authoritatively about how judges should just interpret the law and not push a particular agenda.

What phonies! The darlings of the conservatives - John Roberts and Samuel Alito - are two of the biggest judicial activists to come along, voting to overturn laws passed by Congress and expand powers of the executive branch.

When it came to gay marriage, the California Supreme Court refused to engage in that kind of activism. They kept their personal views in check, and didn't give in to a particular agenda. And, the truth is, they could only do so much with the argument they were presented with.

That's why it's time for a new argument - and a new venue. That's the view of legal heavyweights Ted Olson and David Boies - who butted heads during the 2000 Bush v. Gore presidential election case. They filed a lawsuit last week on behalf of two same-sex couples who wanted to be married but were denied that right because of Proposition 8. The suit claims the measure denies same-sex couples due process and equal protection under the law as guaranteed by the U.S. Constitution.

Gay-marriage advocates who have been avoiding the federal courts because they view them as inhospitable to their cause are not happy about this, and are trying to discourage Olson and Boies. The advocates have a different plan - to win smaller battles in individual states, with ballot initiatives or laws approved by state legislatures.

Good plan. How did that work out in California? Let's go to federal court.

© 2009, The San Diego Union-Tribune