On Thursday, California’s Supreme Court issued a sweeping ruling legalizing gay marriage in the state. The court’s Chief Justice Ron George declared that  "... limiting the designation of marriage to a union 'between a man and a woman' is unconstitutional and must be stricken from the statute.”

The 4-3 ruling invalidated a state law declaring that only marriages between men and women could be legally recognized. That law, known as Proposition 22, had been passed with a 61% majority in 2000. In its ruling the court trumped the electorate, a point singled out by one of the dissenters, Justice Carol Corrigan who wrote:

“In my view, Californians should allow our gay and lesbian neighbors to call their unions marriages. But I, and this court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote. This court can overrule a vote of the people only if the Constitution compels us to do so. Here, the Constitution does not.”

But in California, the constitution says what the Supreme Court says it does. And the court’s majority was not constrained by notions of judicial modesty.

Which brings us back to Wisconsin.

In 2006, Wisconsin voters approved a constitutional ban on gay marriage, despite claims from Governor Doyle and others than the measure was unnecessary because statutory bans (like California’s) were in place.

But even with the constitutional ban, it is not hard to imagine that Wisconsin’s own high court might have handed down a California-type ruling, if incumbent Louis Butler had been re-elected this spring. (It could have found a procedural defect in the wording of the constitutional amendment; or invalidated the amendment on federal constitutional grounds.)

Admittedly, given the constitutional provision, the Wisconsin court would have had a higher hurdle than the California Court.

But our court has been nothing if not creative in its jurisprudence. With Butler on the court, the liberal majority had moved hard to the left, aggressively ignoring precedent and substituting their judgment for legislative decisions and acting as a “super-legislature.”  On issues ranging from crime to tort litigation, to constitutional interpretation, the court’s sweeping departures from past practice drew national attention.

In its rulings, the majority:  

1.                  Showed a willingness to ignore the plain language of the state constitution on issues ranging from gambling to gun rights.

2.                   Changed the court’s standard for reviewing legislation to something called “rational basis with teeth” which essentially allows the justices to second-guess laws they don’t like and which one justice says turns the court into a “super-legislature.”

3.                  Signaled that it might rewrite the state’s entire system of education funding.

4.                  Showed a marked willingness to ignore decisions by the US Supreme Court and settled decisions of the court itself.

5.                  Endorsed the principle of “new federalism” which confers greater rights on criminal defendants in Wisconsin than granted by the US Supreme Court.

6.                  Demonstrated a penchant for basing decisions on questionable social science research in lieu of settled law.

7.                  Embraced novel and unprecedented theories for lawsuits against business that have been rejected by other states. In its lead paint ruling, the court adopted the so-called "risk contribution" theory under which producers of components of a manufactured product can be held collectively liable, even if the plaintiffs can’t prove which company’s product caused their injuries.

Butler’s defeat in April by Judge Michael Gableman is likely to swing the court back toward the center, but the California ruling is a cautionary reminder of the critical importance of judicial appointments and elections.