Californians have determined on two occasions that it is in the best interest of society to leave marriage as a union between a man and woman. Based on the experience of more than five thousand years of recorded human history, the collective wisdom of the voters is not particularly remarkable. Those who engage in procreative activities should be encouraged, if not required, to undertake the profound responsibility of raising those that they may create. Hence, this male and female unit is set apart by the community for special recognition, benefits, and burdens. In contrast, a couple of the same-sex does not, either intentionally or unintentionally, create children as a result of their sexual activities. Thus, they are not a similarly situated unit. The majority of Californians and citizens from thirty-two other states understand that.
But not everyone gets it. A lawsuit was brought by two same-sex couples challenging Proposition 8 which codified the traditional definition of marriage and, as a result, violated the Equal Protection Clause of the 14th Amendment. Their lead attorneys, David Boies and Ted Olson, went to federal court with the grand design of mandating homosexual marriage across the country. Olson, who was an important early figure in the Federalist Society and thus ostensibly one who ascribes to original intent, apparently is under the impression that gay marriage was what the ratifiers of the 1868 amendment had in mind.
As we know now, none of this matters because the high court chose not to strike down the Marriage Amendment. Instead, they contented themselves with emasculating the voters. The Court found no standing by the proponents to defend the law in federal court. Hence, the US Court of Appeals for the Ninth Circuit's opinion, which found Proposition 8 unconstitutional, is now "vacated, and the case remanded with instructions to dismiss the appeal for lack of jurisdiction."
But what does that mean? California's Governor, Jerry Brown, asserts that the ruling of the San Francisco district court judge, Hon. Vaughn Walker, will be reinstated. Walker, whom the San Francisco Chronicle outed as gay, enjoined the state officials named as defendants from enforcing Proposition 8. As such, Brown has ordered county clerks from the borders of Mexico to Oregon to issue marriage licenses as soon as the Ninth Circuit lifts its stay. That might be premature. Judge Walker's decision may be corralled to just the two same-sex couples who brought suit rather than to all of California. The lack of clarity on this issue will sow the seeds for the next lawsuit.
All of this could have been avoided had Governors Arnold Schwarzenegger and Brown taken the procedural steps to file an appeal in this case. Instead, they have cunningly robbed the citizens of their day in court. The calculated choice by Schwarzenegger and Brown to deprive Californians of a fair opportunity to have their cause heard by the judiciary has disenfranchised millions of people. In view of that, the Supreme Court's decision lacks legitimacy.
As a result of the Court's decision, a governor can engage in what amounts to a constructive veto of any state law by not showing up in federal court when it is challenged. This amounts to a breathtaking judicially created transfer of power from the people to governor's mansions.
So as the members of the Supreme Court pushed this opinion out the door so they can leave for vacation a day early, they leave California in a constitutional crisis.
Kevin Snider serves as chief counsel for Pacific Justice Institute.
Suggested citation: Kevin Snider, True Marriage Equality in California?, JURIST - Hotline, June 27, 2013, http://jurist.org/hotline/2013/06/kevin-snider-prop8-reaction.php.
This article was prepared for publication by Stephanie Kogut, Section Head of JURIST's professional commentary service. Please direct any questions or comments to her at firstname.lastname@example.org