BAYHAM: What The Proposition 8 Ruling Was REALLY About

The Supreme Court dealt a pair of controversial rulings related to the question of marriage on Wednesday, delivering victories to those who seek to fundamentally “expand” the millennia old concept of marriage through one decision that slashed the congressionally adopted Defense of Marriage Act and another that undermined a state constitutional amendment that defined marriage as being between two individuals of opposite genders.

Proposition 8, like DOMA, is connected to the “gay marriage” issue, though what was actually decided by the highest court in the land was not a state’s ability to define marriage exclusively as the legal union of a man and a woman but whether the advocates of Proposition 8 had standing to appeal the case, which became necessary when the law was challenged in court and the state government refused to defend the law.

Though the opinion was released the same day the court narrowly struck down DOMA, the substance of Proposition 8 was practically incidental since the fallout of the decision could affect citizen initiatives covering any subject.

However the end result, due to lower court rulings, will be that same sex marriage will soon be legal in California.

In November 2008, on the very day that Barack Obama received a whopping 61% of the vote in the Golden State, California voters approved with 52% a citizens’ initiative (Proposition 8) to add the following language to the state constitution: only marriage between a man and a woman is valid or recognized in California.

The measure was aimed at locking in “traditional marriage” while also not recognizing marriages between persons of the same gender that were licensed in states that permit it.

The amendment was declared unconstitutional by Federal District Judge Vaughn Walker, who after retiring from the bench announced he was gay and had been in a long-term relationship with a man.

And in a decision that surprised nobody, the 9th Circuit/Circus Court of Appeals panel concurred with the lower court opinion that Proposition 8 was unconstitutional, arguing that it violated the first section of the Fourteenth Amendment commonly known as the “equal protection clause.”

By a five to four margin, the Supreme Court wrongly ruled that the activists who advanced the initiative lacked “standing”, that is the capacity to bring a lawsuit, and so the court dodged actually ruling whether a state had the authority to define what constituted marriage or if citizens possessed a constitutional right to marry someone of the same gender and thus nullifying state laws that only licensed “traditional marriages.”

Though he has been party to a number of disagreeable decisions by the court, Justice Anthony Kennedy wrote an excellent dissent for the minority, where he was joined by Justices Thomas, Alito and Sotomayor (!).

Justice Kennedy pointed out that the majority had ignored California law, which allows proposition sponsors to represent their measures in a court and rejected the sovereignty of the people, since the very concept of having a public initiative option is to allow the citizenry to go around the state government.

Though he spent relatively less time fleshing it out, Justice Kennedy hit on a very important point that could have dire consequences in the future, that being a state government that objects to a particular enacted law could potentially “pocket veto” the law in question by simply refusing to defend the law in court after an adverse ruling, thus trapping the matter in legal purgatory.

The court’s decision turned the initiative process of enacting laws via petitions and direct democracy on its head if not essentially gutting an alternative legislative device that empowers the people and exists in 27 states.

The initiative was created as a means for the people to circumvent the government, yet the majority of the court created a means for the state to circumvent not just the people by denying the public standing but potentially full judicial review of an “abandoned” law.

By their poor ruling, the judiciary has prevented non-officials the authority to do the job the government is supposed to do.

Or put another way, the judiciary branch chose to side with the state ,that is the government, over the people.

Regardless of what one’s view on same-sex marriage is, the public’s capacity to influence government was significantly weakened on Wednesday.

This was a bad bargain for democracy.



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