Tip:
Highlight text to annotate it
X
This is the CitizenLink Report: If you find our insights helpful, would you support our video efforts? Your gift of $25
or more goes a long ways: Covers the crew, lights, cameras - all that. Just click on Donate.
Thanks from all of us.
Proposition 8 will go before the California Supreme Court. That makes the fifth time in
nine years the state Supreme Court has been asked about same-sex marriage.
This is the CitizenLink Report. Hi everyone, I'm Kim Trobee and I'm joined by Bruce Hausknecht.
He's our legal analyst here at CitizenLink. Hey Bruce.
Hi Kim
Okay, there is a lot of confusion surrounding recent Supreme Court rulings on this issue.
Let's start there.
Well in the last couple days of June the Supreme Court handed down the two marriage decisions:
One had to do with the Federal DOMA: the Defense of Marriage Act. The other one had to do with California's
marriage amendment also called Prop 8. Now the Prop 8 case was essentially
not decided -- it was kicked back to California. The Supreme Court decided that on a technical
issue, the proponents of Prop 8 -- the people who brought it to the ballot and got it passed
were not the proper parties to appeal the loss or the declaration that it was unconstitutional
at the trial court in San Francisco. So it stared in San Francisco, went up to the Supreme Court.
They decided that no one had the right to appeal it and they sent it back down and
on the way back down they also tossed out the 9th circuit decision that also rendered
it unconstitutional. So all we're left with is a federal district court judge in San Francisco,
Vaughan Walker, who in 2010 declared the Prop 8 marriage amendment unconstitutional and
that's where we stand. But there was a lot of debate as to what exactly happened in that
district court opinion whether it actually applied to all of California. And so now that
we're back there, we have a mess and it's gone to the California Supreme Court by the
proponents again and they've asked the California Supreme Court to sort it out.
Okay. So we have the governor of California and the Attorney General declaring same-sex
marriage legal in the state. One man and one woman marriage proponents have now petitioned
the state's high court. What's behind this latest development?
Well, here's the legal issue. The proponents are actually saying you need more than a federal
district court judge's opinion to render a California state law unconstitutional. There's
this amendment or there's a provision in the California constitution that says unless there's
an appellate court decision declaring a state law unconstitutional, then state officials,
state agencies including county clerks who issue marriage licenses, are required to comply
with existing California law which is Prop 8. So the argument is we don't have an appellate
court decision yet. The other argument is that even if the federal court opinion somehow
applies, it only applies to the two county clerks that were named in the lawsuit and were covered
by the order or the injunction as it was called, to issue those same-sex marriage licenses.
The other 56 counties were not represented in that court room. And so that's why the
proponents are back at the Supreme Court saying we need an order or declaration saying that
these clerks should not be violating Prop 8.
This will be the fifth time that these justices have looked at same-sex marriage. What's been
their track record?
Well -- pros and cons. Back in 2004 the Supreme Court of California stopped the mayor of San
Francisco from issuing same-sex marriage licenses. He took it upon himself to declare the law
unconstitutional and ordered the city clerks to start issuing those licenses. The Supreme
Court of California got involved and said no, as an official of the State of California,
you have to follow the law. That's good for where we're at right now. But in 2008 that
same court also declared same-sex marriage to be the law in California. And which overturned
another ballot initiative from 2000 called Prop 22. That decisions a bad one. Then fast
forward to 2009 - when Prop 8 was passed, in 2008 - it was challenged immediately on technical
grounds. They said nah, this amendment violates the standards for ballot initiative. California
Supreme Court says no, it's fine -- it passes all the tests and that's a good decision.
And then we had another trip to the California Supreme Court from the 9th circuit during
the federal appeal. When the federal 9th circuit asked the state Supreme Court "under California
law, do the proponents of Prop 8 -- the people who brought this to the ballot, do they have
standing? Are they the legitimate parties to be bringing this appeal in the federal
courts?" State of California Supreme Court said yes they are. Otherwise the integrity
of the whole ballot initiative is undermined. They are the proper parties. So we've had
some good successes -- we've had some defeats at the California Supreme Court and now for
the fifth time in nine years, we're back there asking them to tell these state officials
to comply with Prop 8 because it's still the law of California.
Now you mentioned earlier, this is a mess -- there's a lot of things going on with this,
but marriage isn't the only thing that's at stake in this decision.
Well that's true. California's constitution as most state constitutions do, declares that
all political power resides in the people. They delegate some of those powers to the
Legislator and to the Governor and the Attorney General. But still that's delegated power.
The final authority always rests with the people. And so ballot initiatives -- when you go to
the ballot and pass a law, you bypass the Legislature, you bypass the Governor and that
is pure democracy that is -- it reinforces the notion that the people really rule in
California as in other states. By allowing what's happened so far to continue -- that
is in effect the Governor and the Attorney General have vetoed Prop 8 by refusing to
defend it in the federal court appellate process, then the process get undermined. The people
lose respect for the democratic process and in effect, we've lost power. The people have
advocated some power to the executives in the state. Already since the Supreme Court
decision we've seen the Pennsylvania Attorney General also say that she is not going to
defend Pennsylvania's marriage laws that have recently been challenged as to their constitutionality.
So this thing is snow-balling and it's not good for democracy.
So what's next in this particular case?
Well this is on a fast track from what I can tell. The California Supreme Court has ordered
briefing to be completed by August 1. I don't know if they plan to have a hearing on that
but we could have a decision soon.
Bruce, thank you so much for your insights on this -- this really is a complicated issue
and we always appreciate getting clarity from you when you're on the show, so thanks.
Thanks Kim
And thank you for your communication with us. We love hearing what you think about the
show and sharing your thoughts. You're always welcome to email us -- that address is Mail@CitizenLink
dot com. That's Mail@CitizenLink dot com. And we encourage you to pray for our elected
officials and our nation.
And remember: Stand Tall and Be Heard!