{"id":2211,"date":"2013-06-27T18:05:04","date_gmt":"2013-06-28T01:05:04","guid":{"rendered":"https:\/\/scotshonor.com\/?p=2211"},"modified":"2013-06-27T18:05:04","modified_gmt":"2013-06-28T01:05:04","slug":"a-straight-eight","status":"publish","type":"post","link":"https:\/\/scotshonor.com\/?p=2211","title":{"rendered":"A STRAIGHT EIGHT"},"content":{"rendered":"

Yesterday was a great day for gay activists, or was it?\u00a0 There certainly was a lot of celebrating and the pundits on TV were all saying this.\u00a0 But then I realized that something strange had happened.\u00a0 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.\u00a0 That gave me pause.\u00a0 If he was so dead set against gay marriage, why the decision on Proposition 8 which appeared to approve gay marriage in California?<\/p>\n

http:\/\/www.cnn.com\/2013\/06\/26\/politics\/scotus-prop-8\/index.html<\/a>\u00a0<\/p>\n

CNN added a little fact and a lot of assumption.\u00a0 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.\u00a0<\/p>\n

So I did a little research and I think the following article on Breitbart.com provides a clue:\u00a0<\/p>\n

http:\/\/www.breitbart.com\/Big-Government\/2013\/06\/26\/Not-So-Fast-Prop-8-Still-California-Law<\/a>\u00a0<\/p>\n

The Supreme Court did not overturn Proposition 8.\u00a0 They didn\u2019t even rule on the merits of Proposition 8 or the merits of the lower court decisions.\u00a0 Instead they ruled that the appeal of Judge Walker\u2019s decision itself was a non-starter because the petitioners did not have standing in federal court.\u00a0 They ruled that only the Governor or the Attorney General could have filed that appeal.\u00a0 They just tossed the whole process in the trash and told them to start over.\u00a0 In making this decision they vacated the decision by the Ninth District Court to uphold Judge Walker\u2019s decision.\u00a0 That means that the only decision that remains in effect regarding Proposition 8 is Judge Walker\u2019s decision.\u00a0<\/p>\n

It is vital to point out that Proposition 8 was upheld by the California Supreme Court.\u00a0\u00a0<\/p>\n

http:\/\/www.nytimes.com\/2009\/05\/27\/us\/27marriage.html?pagewanted=all&_r=0<\/a>\u00a0<\/p>\n

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.\u00a0 That would appear to mean that Judge Walker\u2019s opinion is nice, but it doesn\u2019t change the law.\u00a0 His decision must be confirmed by an appellate court or it has no enforcement value.\u00a0 The failure of Governor Brown and\/or Attorney General Harris to appeal Judge Walker\u2019s decision means there was no appellate review.\u00a0 Since there was no appellate review, the law remains in effect.\u00a0 Walker\u2019s opinion is only that, an opinion.\u00a0 It does not have the force of law.\u00a0\u00a0<\/p>\n

The California constitution is actually quite clear about this:\u00a0<\/p>\n

CALIFORNIA CONSTITUTION<\/i><\/b><\/p>\n

ARTICLE 3\u00a0 STATE OF CALIFORNIA<\/i><\/b>\u00a0<\/i><\/b><\/p>\n

\u00a0<\/i><\/b><\/p>\n

SEC. 3.5.\u00a0 An administrative agency, including an administrative<\/i><\/b><\/p>\n

agency created by the Constitution or an initiative statute, has no<\/i><\/b><\/p>\n

power:<\/i><\/b><\/p>\n

\u00a0\u00a0 (a) To declare a statute unenforceable, or refuse to enforce a<\/i><\/b><\/p>\n

statute, on the basis of it being unconstitutional unless an<\/i><\/b><\/p>\n

appellate court has made a determination that such statute is<\/i><\/b><\/p>\n

unconstitutional;<\/i><\/b><\/p>\n

\u00a0\u00a0 (b) To declare a statute unconstitutional;<\/i><\/b><\/p>\n

\u00a0\u00a0 (c) To declare a statute unenforceable, or to refuse to enforce a<\/i><\/b><\/p>\n

statute on the basis that federal law or federal regulations prohibit<\/i><\/b><\/p>\n

the enforcement of such statute unless an appellate court has made a<\/i><\/b><\/p>\n

determination that the enforcement of such statute is prohibited by<\/i><\/b><\/p>\n

federal law or federal regulations.<\/i><\/b>\u00a0<\/p>\n

Governor Brown and Attorney General Harris refused to appeal Judge Walker\u2019s decision.\u00a0 That is why those other people filed the petition, the State of California failed to file an appeal to uphold its own law.\u00a0 Now the Supreme Court has ruled that since neither Governor Brown nor Attorney General Harris filed an appeal, no appeal has been filed.\u00a0 The Ninth District Court\u2019s decision is irrelevant, because they had no justification for even reviewing the file.\u00a0\u00a0<\/p>\n

It is just possible that we will go back to August of 2010, when Judge Walker issued his opinion and start over.\u00a0 It could easily take another three years, or longer, \u00a0for this to work its way, again, through the legal process and then there is no guarantee of results.\u00a0 In the meantime the California Supreme Court has upheld Proposition 8, so it remains the law of the land.\u00a0<\/p>\n

Governor Brown was quick to order state agencies to get ready to issue marriage licenses to same sex couples.\u00a0 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.\u00a0 They have a good argument, because the state constitution is quite clear.\u00a0\u00a0<\/p>\n

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.\u00a0 It is bad enough to lose.\u00a0 The ultimate insult is to find out that in winning you actually lost.\u00a0 I do not know how this will work out, but my guess is that it is at least murky enough to slow things down. \u00a0\u00a0Don\u2019t be surprised to learn that instead of adding clarity to this issue, the Supreme Court just brilliantly kicked the can further down the road.\u00a0<\/p>\n

TDM<\/p>\n","protected":false},"excerpt":{"rendered":"

Yesterday was a great day for gay activists, or was it?\u00a0 There certainly was a lot of celebrating and the pundits on TV were all saying this.\u00a0 But then I realized that something strange had happened.\u00a0 Anthony Scalia gave a … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_coblocks_attr":"","_coblocks_dimensions":"","_coblocks_responsive_height":"","_coblocks_accordion_ie_support":"","footnotes":""},"categories":[1],"tags":[],"class_list":["post-2211","post","type-post","status-publish","format-standard","hentry","category-latest-headlines"],"yoast_head":"\nA STRAIGHT EIGHT - SCOTS HONOR<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/scotshonor.com\/?p=2211\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"A STRAIGHT EIGHT - 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