Yesterday was a great day for gay activists, or was it? There certainly was a lot of celebrating and the pundits on TV were all saying this. But then I realized that something strange had happened. Anthony Scalia gave a scathing rebuttal to the overturn of the Defense of Marriage Act provision, but he actually agreed with the decision regarding Proposition 8 in California. That gave me pause. If he was so dead set against gay marriage, why the decision on Proposition 8 which appeared to approve gay marriage in California?
http://www.cnn.com/2013/06/26/politics/scotus-prop-8/index.html
CNN added a little fact and a lot of assumption. They were correct in describing the Supreme Court decision, but not necessarily correct in assuming that this will result in an immediate resumption of gay marriages.
So I did a little research and I think the following article on Breitbart.com provides a clue:
http://www.breitbart.com/Big-Government/2013/06/26/Not-So-Fast-Prop-8-Still-California-Law
The Supreme Court did not overturn Proposition 8. They didn’t even rule on the merits of Proposition 8 or the merits of the lower court decisions. Instead they ruled that the appeal of Judge Walker’s decision itself was a non-starter because the petitioners did not have standing in federal court. They ruled that only the Governor or the Attorney General could have filed that appeal. They just tossed the whole process in the trash and told them to start over. In making this decision they vacated the decision by the Ninth District Court to uphold Judge Walker’s decision. That means that the only decision that remains in effect regarding Proposition 8 is Judge Walker’s decision.
It is vital to point out that Proposition 8 was upheld by the California Supreme Court.
http://www.nytimes.com/2009/05/27/us/27marriage.html?pagewanted=all&_r=0
The California Constitution does not allow anyone to ignore a California law because they consider it to be unconstitutional, unless that opinion has been ratified by an appellate court. That would appear to mean that Judge Walker’s opinion is nice, but it doesn’t change the law. His decision must be confirmed by an appellate court or it has no enforcement value. The failure of Governor Brown and/or Attorney General Harris to appeal Judge Walker’s decision means there was no appellate review. Since there was no appellate review, the law remains in effect. Walker’s opinion is only that, an opinion. It does not have the force of law.
The California constitution is actually quite clear about this:
CALIFORNIA CONSTITUTION
ARTICLE 3 STATE OF CALIFORNIA
SEC. 3.5. An administrative agency, including an administrative
agency created by the Constitution or an initiative statute, has no
power:
(a) To declare a statute unenforceable, or refuse to enforce a
statute, on the basis of it being unconstitutional unless an
appellate court has made a determination that such statute is
unconstitutional;
(b) To declare a statute unconstitutional;
(c) To declare a statute unenforceable, or to refuse to enforce a
statute on the basis that federal law or federal regulations prohibit
the enforcement of such statute unless an appellate court has made a
determination that the enforcement of such statute is prohibited by
federal law or federal regulations.
Governor Brown and Attorney General Harris refused to appeal Judge Walker’s decision. That is why those other people filed the petition, the State of California failed to file an appeal to uphold its own law. Now the Supreme Court has ruled that since neither Governor Brown nor Attorney General Harris filed an appeal, no appeal has been filed. The Ninth District Court’s decision is irrelevant, because they had no justification for even reviewing the file.
It is just possible that we will go back to August of 2010, when Judge Walker issued his opinion and start over. It could easily take another three years, or longer, for this to work its way, again, through the legal process and then there is no guarantee of results. In the meantime the California Supreme Court has upheld Proposition 8, so it remains the law of the land.
Governor Brown was quick to order state agencies to get ready to issue marriage licenses to same sex couples. I suspect some very smart lawyers are already preparing the request for an emergency injunction, in state court, for a restraining order preventing him from doing that. They have a good argument, because the state constitution is quite clear.
If this is true, there are going to be a lot of very embarrassed people, a lot of very angry people and an enormous amount of frustration. It is bad enough to lose. The ultimate insult is to find out that in winning you actually lost. I do not know how this will work out, but my guess is that it is at least murky enough to slow things down. Don’t be surprised to learn that instead of adding clarity to this issue, the Supreme Court just brilliantly kicked the can further down the road.
TDM