“Legal jujitsu” - California Supreme Court

“I cannot join the majority’s holding that the California Constitution gives same-sex couples a right to marry. In reaching this decision, I believe, the majority violates the separation of powers, and thereby commits profound error....”

In his dissent, Baxter wrote that he agreed with the court’s majority that “‘from the beginning of California statehood, the legal institution of civil marriage has been understood to refer to a relationship between a man and a woman.’” He noted he also agreed that Proposition 22, the “initiative statute, adopted by popular vote of 61.4 percent and thus immune from unilateral repeal by the Legislature,” invalidates both same-sex marriages “consummated elsewhere” and those “contracted under that name in the state.”

Baxter, however, criticized the majority for relying “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 statute....”