The California Supreme Court has just resolved a major procedural issue as to Prop. 8, which codified the “one man, one woman” definition of marriage into the California Constitution after the California Supreme Court held that there was a state constitutional right for same-sex marriage.
The opponents of Prop. 8 sued in federal court, and the California AG Jerry Brown refused to defend Prop. 8, leading other groups to step in. The federal district court ruled against Prop. 8, and one of the issues on appeal was whether the defenders of Prop. 8 had standing. The federal appeals court asked for an advisory opinion from the California Supreme Court as to California law, and the Supreme Court just ruled that the defenders did have standing to defend Prop. 8.
As reported at Volokh Conspiracy, this means that the 9th Circuit will decide the case on the merits, and not throw out Prop. 8 on procedural grounds:
The California Supreme Court has just decided that the official proponents of an enacted initiative — the group that got it onto the ballot — may, under California law, assert the state’s interest in defending the initiative when state officials refuse to do so. This means, given the Ninth Circuit earlier analysis of the matter, that the proponents of Prop. 8 have the legally required “standing” to appeal the trial court’s decision holding Prop. 8 unconstitutional. And that in turn means that the Ninth Circuit (and likely eventually the Supreme Court) can consider whether Prop. 8 is indeed constitutional.
As I have written before, the attempt to prevail on Prop. 8 on the standing ground not only was suspect on the merits, but was a stupid litigation tactic which caused substantial delay in resolution of the ultimate issue. It was too cute by half.
Update: Here is the key portion of the ruling:
Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters. It would exalt form over substance to interpret California law in a manner that would permit these public officials to indirectly achieve such a result by denying the official initiative proponents the authority to step in to assert the state‘s interest in the validity of the measure or to appeal a lower court judgment invalidating the measure when those public officials decline to assert that interest or to appeal an adverse judgment.
Accordingly, we respond to the question posed by the Ninth Circuit in the affirmative. In a postelection challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state‘s interest in the initiative‘s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.
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secure the Blessings of Liberty to ourselves and our Posterity
The institution of marriage (defined by the potentially productive commitment between one man and one woman) is a derivative of the natural order.
We reject the natural order as we normalize behaviors which are antithetical to its fitness. We reject the enlightened order as we normalize policies which are antithetical to individual dignity. What, exactly, is the motivation for negative progress?
It seems there is an active effort to degrade the status of people to that of the hypothetical simian derivative.
Perhaps all this is based on the belief of Antonio Gramsci, a committed Marxist, who believed that in order to create a society that was loyal to the state, the family unit, based heavily on religious doctrine, must be destroyed, or at least have its importance reduced. A person loyal to family and faith, would not be loyal to the Marxist state.
Gramsci also wrote that in order to indoctrinate someone to the Marxist view, it was important to complete that indoctrination by the age of 12, otherwise children would start to form their own opinions and be reluctant to accept Marxist doctrine.
So we see traditional marriage being challenged, and courts ruling that schools, not parents, have control over children and what they are taught.
If the 9th Circuit is going to actually decide this on the merits, then it’s likely headed for a SCOTUS battle (where the defenders of Prop. 8 SHOULD win, but likely won’t).
You just KNOW that the 9th Circuit is itching to say this is a civil rights issue in the mold of the 14th Amendments guarantee of “equal protection” for race-based marriages.
The big question once it gets to SCOTUS will be where Kennedy will come down, given his position in Romer v. Evans 517 US 620 (1996) which prevented Colorado from amending their constitution (in statewide referendum) to prohibit any Protected Status based on “Homosexual, Lesbian or Bisexual Orientation.”
The SCOTUS question will be: Is Marriage a fundamental right? The SCOTUS SHOULD answer that question as “NO;” it is a state endorsed contract, and the state has the right to abolish marriage if it so chooses. But my guess is that it won’t.
Reading the future – My guess is that Kennedy will waver if the Prop 8 case makes it to the Supreme Court, and will stand on Loving v. Virginia (1967) and Griswold v. Connecticut (1965), replacing race with sexual orientation, to say that “Marriage is a fundamental right as part of the ‘right to privacy’ implicit in the Fourteenth Amendment’s Due Process Clause.” (Zablocki v. Redhail 434 US 378 (1978), part II, decision written by Justice Marshall, has a fast breakdown of about 100 years of SCOTUS jurisprudence on marriage.
The text of any decision that comes out of this will be VERY heavily scrutinized, because it will be able to be used by all sorts of other groups who want to attack OTHER marriage laws.
The problem I have with this going to the SCOTUS is that marriage is not a perview of the federal government and is a 10th Amendment issue. States have sole purview to determine marriage laws and the citizens of that state have the authority to determine social norms within that state by a general vote.
Also, the argument that gays do not have equal rights is a bogus one. There is no sexual orientation litmus test on a marriage license application and they (gays) are free to marry under the terms of licensing by the states. If a gay man presents himself with a gay woman they can apply for a marriage licence. The argument only become creditible with the addition of a caveat; “person of my choice.”
Allowing same-sex marriage, which has absolutely no social value, will also open the door for the removal of all restrictions on marriage for people of consenting age. If you can legally “marry” a person of the same sex, why can’t you marry your sister, or brother or fist cousin?
Marriage SHOULD be a States-rights issue. It has been abused because so many federal benefits have also been conferred upon couples with “married” status (tax benefits, HHS benefits, Social Security benefits, etc…).
Unfortunately the civil rights movements fought for integration of marriages on a “fundamental right” footing in order to give their arguments more credence, and used the courts to do so, rather than the more appropriate procedure of legislation or, in this case, State Constitutional amendment.
The unintended consequence of that decision is this: that it can be used to basically remove any and all restrictions placed on marriage by states.
Anything less by the SCOTUS would be inconsistent with their prior holdings on the fact that fundamental rights can only be very lightly restricted, and always for an enormously important purpose. However, the SCOTUS has never really cared about being consistent, so they might just say “we find family stability to be a sufficiently important purpose.”
If Heterosexuals are not permitted to enter a contract of marriage with members of the same-sex while Homosexuals are permitted to enter a contract of marriage with members of the opposite sex then where is the violation of civil rights?
I think Marxist Lawyer Brigade is just making up civil rights for something which does not exist.
I have a question. If a group challenges a state law as unconstitutional in federal court, and the state refuses to defend it, why does the law get voided? Yes, you have the principle of a default judgment. But in federal courts, don’t you have to have a “case or controversy”. That is a constitutional requirement, as opposed to the principles behind default judgments.
Thus, shouldn’t the correct result be in the above hypothetical that the court has to dismiss for lack of a case or controversy?
A “case or controversy” still exists under your question because the law is recently passed and has the likelihood of being enforced if not blocked in some manner.
In this particular case, it means that there is a (California Constitutional) denial of being issued a marriage certificate.
It would be different if this had been part of the California Constitution for many decades and had not been enforced. Then, the court would likely say that no “case or controversy” actually existed until such time as someone was denied a marriage license for marrying their same-sex partner.
Also, just because a state official makes a choice to not defend a particular law, that doesn’t mean that official doesn’t have the obligation to defend that state law (which here is giving rise to the right of the pro-prop 8 groups to step in on the official’s behalf).
this decision is the best case scenario for proponents of marriage equality. had the standing isssue gone the other way, the entire case would have gone back to square one. with this question resolved, the 9th can proceed with hearing the case on the merits (which we know, from the testimony in the original case, were made of thin gruel)and, most likely, determine that the proposition to deny one group of citizens their access to civil rights and responsibilities that are afforded to other citizens is unconstitutional.
They have the same rights and responsibilities as everybody else. Marriage, as defined, one man, one woman. As Tina Turner said “What love got to do with it?”
Although I disagree with the policy encodified by this initiative, I agree that private citizens should be able to defend initiatives in court if state officials refuse to do so. I’ve seen state officials play these games before. The citizens pass an amendment to a state constitution that the government opposes. People opposed to the initiative sue to overturn it, and the government refuses to defend the initiative in court in the hopes of letting it die on procedural grounds. Today it’s an initiative on gay marriage. Tomorrow it could be an amendment to overturn the Kelo decision.