Professor Responds to Supreme Court Overruling of Prop. 22

May. 19, 2008 By Jenna Bartlo

Un-Natural Law:  The California Supreme Court Overrules Proposition 22

By Kevin Alan Lewis, Assistant Professor of Theology and Law, Biola University

May 15, 2008

By an egregious act of judicial activism, the California Supreme Court, by a 4-3 decision, has overruled Proposition 22, the Defense of Marriage Act. The Defense of Marriage Act, passed in 2000 by 61.4% of voters, explicitly amended the California Family Code to limit marriage in California to one man and one woman. 

The legal result of the court’s decision is that California will begin to permit legally recognized homosexual marriages in 30 days, unless the court grants a stay on its decision.  In November, Californians will likely vote on the Marriage Amendment Initiative, which, if passed, would in substance make the language of the Defense of Marriage Act a part of the state constitution.  This would effectively prevent the court from tinkering with the will of the people on the matter. However, given the sad state of legal reasoning found in the current decision, I would not be surprised if the California Supremes’ next feat of judicial prestidigitation was to declare the constitution itself unconstitutional.

This California decision, if implemented, will quickly affect every state in the union. The Full Faith and Credit Clause of the U.S. Constitution will likely require each state to acknowledge homosexual marriages contracted in California as legitimate marriages and grant each homosexual “couple” the same rights and privileges as heterosexual couples. 

This current ruling, however, should not surprise anyone. The Christian law and public policy community has seen this judicial tsunami coming for over two decades (See Bowers, Romer, Lawrence, et al.).   The homosexual lobby has been relentless and united in its crusade against Christian ethics and the traditional family.  And if the Christian community fails to act quickly and effectively, this decision will be only one of many constitutional train wrecks to come in the near future. (Q): What’s coming next if we do not get busy?  (A): Hate speech laws to silence those who disagree with the left’s agenda.

Problematic Legal Reasoning
So what’s legally wrong with the decision?   The dissenting opinion by Justice Baxter nicely summarizes the problems with the majority opinion.  In it, he states a number of problems with the court’s ruling:

“In reaching this decision, I believe, the majority violates the separation of powers, and thereby commits profound error.” 

“Nothing in our Constitution, express or implicit, compels the majority’s startling conclusion that the age-old understanding of marriage — an understanding recently confirmed by an initiative law — is no longer valid.” 

“The majority’s mode of analysis is particularly troubling.  The majority relies heavily on the Legislature’s adoption of progressive civil rights protections for gays and lesbians to find a constitutional right to same-sex marriage.  In effect, the majority gives the Legislature indirectly power that body does not directly possess to amend the Constitution and repeal an initiative”

The majority decision also employed the homosexual rights lobby’s commonly used specious arguments and legal sophistry, for example, comparing the current denial of homosexual marriage with the denials of interracial marriages in past decades.  And in its analysis of the state’s constitutional right to marry and the state’s equal protection clause, the court emotionally opined about the need for “equal dignity” and the end of “discrimination” against homosexuals.

This was judicial activism at its worst.

The Required Response by God’s People
America is clearly engaged in a cultural war of values.  Judicial activism into deep, morally rooted worldview issues, such as abortion, has only produced the effect of a deeply divided culture.  Roe v. Wade prematurely cut off the substantive, legitimate debate in the public square on a vital, moral and legal issue.  A judicial decision finalizing an aspect of the debate on homosexuality only serves to further divide the culture and cut off the legitimate debate in the public square. 

The struggle against evil will continue until the Lord returns.  And as such God’s people must respond with more than a passive disgust.  Christians must stop playing defense and begin to implement a comprehensive offensive strategy to protect the culture, making it a safe and healthy place to raise children and live our Christian faith.  This, I believe, is the preferred way to live.

Contemporary Christian leaders in the university and the church need to adopt a biblical theology of church and state (See Romans 13:1-7, et al.) and train our own people to think Christianly, while functioning in civil government at the highest levels.  In the era of America’s Founding Fathers, we, the church, produced leaders like John Jay, a co-author of the Federalist Papers, Governor of New York, the first Chief Justice of the U.S. Supreme Court and the second President of the American Bible Society!  Christian higher education needs to rapidly produce more outstanding leaders like Justice Jay.

On a more local level, we need to recruit our own candidates and work diligently to have them elected.  Then, we must vote intelligently for these candidates—including judges.  Christian civic leaders can protect our inalienable God-given freedoms.  Unfortunately, Christian apathy and inaction at the ballot box has only served to produce a parade of legislative, executive, and judicial tyrants at all levels of government.  There are many good voters’ guides available. We need to get registered, get informed, and vote so that we, our children, and our children’s children will continue to enjoy the blessings of liberty and the providential favor of our Creator.

Homosexuality is and always will be a sin (See Lev. 18:22; 20:13; Rom. 1:18-32). And it is bad public policy for the state to legitimize and encourage behaviors and unions that harm the family, the backbone of civilization. 

Fortunately, God, the Righteous Judge, has already overruled the California court’s decision.  However, it is up to God’s people to implement His decision—rapidly, wisely and prudently.

“Blessed is the nation whose God is the LORD” (Psalm 33:12)

Click here to download the full supreme court opinion (PDF File)

For resources on the issues related to homosexuality in culture, see

For Christian friendly voters guides, see

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