SCOTUS ruling on CA’s Prop 8 is not the victory anyone’s really going to be happy with

The Supreme Court has been issuing their rulings this past week and there were some doozies in there. Of the most interest were those dealing with gay marriage and the Voting Rights Act of 1965. I’ll contend with the VRA in another post (preview: I’m pleased with the ruling and even more so with the underlying premise) and I’m going to separate the 2 gay marriage rulings this week. The first dealt with the federal Defense of Marriage Act (DoMA) and the second with California’s Proposition 8 (Prop 8).

In the immediate moments after the SCOTUS rulings, there was both dancing in the streets by gay marriage advocates and irate complaints of judicial overreach by opponents. I think both sides are overestimating the affect, only a few on either side is noting the underlying premise of the one, and neither side is apparently recognizing the serious danger SCOTUS just put all of us into, from a rule of law perspective.

The DoMA ruling (PDF) was quite specific. It’s not that the entire act was removed, it was Section 3 that was declared unconstitutional. What that means is that for federal purposes only the definition of marriage as being only the union of 1 man with 1 woman cannot be used by the federal government to determine whether federal benefits that normally accrue to a person as a result of being married actually accrue. The ruling states that it is not up to the federal government to determine the qualifications that permit people to be married. That’s up to the States and to them alone. What it did not do was remove the section that states that marriages performed in one state do not have to be recognized in another. In other words, a gay couple’s marriage in California does not have to be recognized in, say, Virginia. The ruling was clear that the decision whether or not to recognize such marriages is completely in the hands of the state in question. That’s federalism, plain and simple. The federal government, in passing DoMA, exceeded its authority is what the ruling states.

The Prop 8 ruling (PDF), however, is a completely different story. While many boldly – and incorrectly – announced that the SCOTUS had overturned Prop 8, the truth is both narrower and much, much broader in scope. The case of Prop 8 starts with a voter-approved Proposition. This was a change to the CA State constitution, not just any ordinance being passed. The citizens of CA decided to place the definition of marriage into their constitution and did so by a fair margin (52.24% to 47.76%). This was done because the advocates of such a law knew that CA’s state judges had a habit of simply overturning the will of the people as expressed in the laws passed by their representatives. Putting it into the constitution would place it outside the reach of any state judge to change or ignore. What those advocates never envisioned was that the elected governmental officials who were tasked with the obligation to carry out the actions those laws mandate would simply decide to abdicate their responsibility. When the law was challenged in federal court, the Attorney General of CA simply decided he wasn’t going to defend the law. Since he didn’t show up in court, the court rightly ruled in favor of the challengers and the decision was to strike down the law.

Now, here’s where things get ominously interesting. The advocates for this law demanded that the AG’s office appeal the decision and get in there to do their jobs. They declined. So these advocates stepped in and filed an appeal themselves, doing the job that the AG was supposed to be performing. That, ladies and gentlemen, is the action that was brought before the Supreme Court and decided upon this week. SCOTUS did not rule that Prop 8 was unconstitutional, federally. What they ruled was that the advocates for Prop 8 had no standing to appeal the decision of initial District Court. Since they had no standing to appeal, the trial at the Appeals Court was rendered null and the original ruling, declaring Prop 8 to be unconstitutional, was left as the only ruling still standing. Ergo, Prop 8 is overturned. Cue the happy dances and general party-making, to say nothing of the sudden burst of efficiency in various CA County Clerk’s offices in processing marriage certs.

Those who are doing the fist-bumps and generally laughing at the loss suffered by these advocates of Prop 8 should take a careful moment to realize what just happened here. As of this week, any state governor or attorney general can, if they are faced with any law of any level in their states that they, personally, do not politically support, can render said law null and removed simply by deciding they aren’t going to show up in court to defend said law. That’s any law from a county leash law to a state constitutional amendment. If they decide they don’t like it, they just don’t show up. The court rules in the favor of whatever party they’ve managed to convince to file a lawsuit, the law gets overturned, and there is nothing anyone can do about it. The SCOTUS ruling has declared that no one by the AG’s or Governor’s office has the standing to appeal and, therefore, the entire situation is removed from the jurisdiction of the federal appeals system.

So, that lovely new law that got passed banning fracking or oil drilling can be snuffed at the whim of the AG simply by hitting the back 9 instead of being in court. If the Governor doesn’t happen to like that new law protecting abortion rights, he can just simply refuse to task the AG to defending it. And when it goes down in flames, there’s not a damn thing any supporter of said laws can do except to try to elect someone else in the next elections. This is not a good thing, people, that we’ve managed to teach our governing officials that they can simply ignore the laws passed by the people and their representatives and impose their views on all of us with no recourse. The AG’s job is to enforce and defend the laws on the books, not decide which laws should stay and which should go. This ruling will turn around and bite us all.

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