Posted by
BrianR on Wednesday, August 18, 2010 2:01:16 AM
Unless you live in a cave with bin Laden, you’re aware of the federal lawsuit against California Proposition 8, the state constitutional amendment that defines “marriage” as being between one man and one woman. Federal District Judge Vaughn Walker, the Chief Judge for the United States District Court for the Northern District of California, ensconced on his judicial throne in San Francisco, ruled the ballot proposition unconstitutional under a variety of theories. Apparently unsure of his legal footing, he stayed implementation of his ruling – which would have invalidated the state’s constitutional amendment – then said same-sex marriages could proceed temporarily pending a higher court ruling, then stayed that, too.
Phew! Need a scorecard yet?
The Defendants in the case are the State of California and a private organization, ProtectMarriage.com (PMC). Both the state’s Attorney-General, Jerry “Moonbeam” Brown, and Governator, Arnold “Caulifourneeeya” Schwarzenegger, have refused to defend the case in these proceedings. However, Defendant PMC filed an immediate appeal of Walker’s ruling with the Ninth Circuit Court, the most-reversed appellate court in the country.
Yesterday, Monday, 18 August, the Ninth issued a stay of Walker’s ruling pending a future hearing, probably in December. One of the issues they want addressed is PMC’s “standing” to defend the case in light of the de facto absence of the other defendant, the State, due to Brown’s and Schwarzenegger’s refusal to present a defense. “Standing” refers to a party’s proper participation in a lawsuit, based on whether they can show that they’re directly affected by the issues being decided.
And that’s where we stand right now.
Several thoughts occur to me on how this case can proceed, and the ramifications that can develop. First of all, Brown and Schwarzenegger are in blatant dereliction of their duty as sworn executives of the State of California to “defend” our state constitution. This is an impeachable offense (good luck on that in THIS liberal state), as Prop 8 – a state constitutional amendment – is still a part of our constitution until a proper authority has ruled otherwise. Therefore they are mandated by their oaths of office to defend it in court. They don’t get to choose which parts of the constitution they like and are going to defend, no more than we allow cops to decide what parts of the law they’re going to enforce. If they don’t want to defend this proposition, their only options are clear: they can resign or be impeached.
Therefore, in my opinion, one of the first things PMC should do is file for a federal Writ of Mandamus, which would compel Brown and Schwarzenegger to do their duty and press the defense of Prop 8. Needless to say, they could be counted on to do a lousy job of it, but their very continued presence would resolve the issue of “standing” the Ninth wants to address. The other parties involved would then press the defense aggressively.
If there is no Mandamus, and the Ninth decides PMC doesn’t have “standing” and dismisses the case, another issue arises. This would have the effect of making Walker’s ruling binding. But there are seven other states in the Ninth Circuit that also have constitutional amendments barring same-sex marriage, and such a ruling would invalidate all of them as federal rulings of this nature aren’t limited to a single state, but instead create a precedent that affects every state in the Circuit.
At that very instant, seven other parties are created who do have “standing”, the other seven states with such amendments, and I can’t imagine such a ruling not being immediately appealed. This is the very essence of “Equal Protection” under the 14th Amendment: California’s Prop 8 can’t be singled out and overturned without overturning the other states’ identical laws, because the citizens of California would then not be enjoying the equal protection of a court’s ruling. They’d have become the victims of judicial discrimination. Their state would have been singled out for special and discriminatory treatment within the Ninth Circuit. Therefore, such a nullification of California’s law would necessitate the same ruling extend to all the other seven states in the Circuit; hence the seven new litigants with perfect “standing”.
Your eyes glazing over yet?... No?... Well, then, read on.
Those trying to overturn Prop 8 base their claims on the idea that “marriage” is a “fundamental right”, and gays who want to engage in same-sex “marriages” are being deprived of their rights to “equal protection” under the 14th Amendment.
The definition of marriage as a “fundamental right” derived from a 1967 ruling by the US Supreme Court (USSC) in the case of Loving v. Virginia, in which the prohibitions against inter-racial marriages were nullified. That’s why you often hear same-sex marriage advocates trying to equate their issue with inter-racial marriages, and trying to portray it as a “civil rights” issue. Shortly after the Loving case was decided, gay activists started legal proceedings trying to legalize same-sex “marriages”.
The big problem for them is that neither the electorate nor the judiciary bought what they were trying to sell. In the 1972 case of Baker v. Nelson, in which the Minnesota Supreme Court ruled that Minnesota law legitimately limited marriage to opposite-sex couples, the exact same issues as in the Prop 8 case were appealed to USSC and they issued a summary dismissal of the appeal. That amounts to a dismissal on the merits – meaning they found no discernable or valid constitutional issue in the case – and established the Baker case as the controlling precedent on the matter. That ruling, incidentally, was issued by the Burger Court, the same USSC that decided the case of Roe v. Wade. The idea that the much less liberal Roberts Court would hold differently now, assuming the case reaches USSC, is puzzling, to say the least.
As to the reaction of the electorate, look at this link to see the current state of acceptance of same-sex “marriage” nationwide: National Map. Currently, same-sex couples can legally wed only in Massachusetts, Iowa, Connecticut, Vermont, New Hampshire and Washington, D.C. The same-sex “marriage” advocates are trying to redefine the social contract and mores of our society. Unfortunately for them, the people aren’t buying their snake oil. About 2% or so of the population is gay, and apparently the rest of the country doesn’t see a need to let the tail wag the dog. Especially when it comes to redefining one of the basic and fundamental institutions of our culture.
There’s another issue I have yet to see addressed. According to the US Constitution, Article 3, Section 2, “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.” (Emphasis added)
That means that, since the State of California is the Defendant in this case, no court other than the USSC has the power or authority to hear or rule on this case. All either Walker or the Ninth Circuit can legally do is refer the case up the ladder to the USSC.
The Constitution is clear and unequivocal on this. And it’s stated plainly and simply. The Constitution’s never been amended to change this, and the amendment process is the only way it can legally be changed. Therefore, neither Walker’s court nor the Ninth Circuit are legitimate venues for this case. As a matter of fact, that’s obviously the reason the original case dealing with this issue – Baker v. Nelson – went directly from the state court system in Minnesota to the US Supreme Court, with no intervening stops along the way at any lower federal courts.
It’s obvious that the legal attack being mounted against Prop 8 by its opponents is fatally flawed on many fronts: procedurally; precedent; venue; and constitutionality. I feel confident it will go to the Supreme Court, where it properly belongs, and where it will be properly dismissed.
On a side note: feel free to pass this essay on to others if you think it’s of merit. There’s also a propaganda war involved here, and if these thoughts provide ammo, all the better.