Prop 8, Victim of Tyranny

<--break- />The Undermining of Prop 8
Political Power Run Amuck

By William B. May

SAN FRANCISCO, July 2, 2013--I don’t think “tyranny” is too strong of a word for what has happened since I advised you that Prop 8 had not been overturned in my previous email last week. Court procedures have been ignored, the Governor and Attorney General have exceeded their authority, and counties all around California have been marrying same-sex couples in violation of the California Constitution as amended by the voters of California in 2008. Proposition 8 remains in effect, but state constitutional officers are ignoring it, seemingly with impunity. It is outrageous.

CCG Reaction to US Supreme Court DOMA and Prop 8 Decisions

The Supreme Court kicked the Prop 8 case back to the state with the ruling that only the Governor or Attorney General can defend a voter passed constitutional amendment. The Prop 8 legal defense team had been considering its next steps to defend the will of the voters when a number of surprise moves started taking place by the measure’s opponents late Friday afternoon.

Last year there had been a stay of the Federal District Court decision overturning Prop 8 in two counties issued by the Ninth Circuit Court of Appeals. Appellate court declared that “the stay shall continue until final disposition by the Supreme Court.” Final disposition will take place 25 days after the Appeals Court receives the mandate from the Supreme Court, some three weeks away.


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.

Suspiciously, at 3PM on Friday afternoon, one hour after close of business in Washington, DC, without notice to the Prop 8 legal defense team, the Appeals Court decided to lift the stay. The plaintiffs, the Governor, Attorney General, the Mayor of Los Angeles, San Francisco City Hall and their media teams seemed to have had prior notice as they were ready to spring into action within minutes. The Governor ordered independently-elected county clerks to start marrying same-sex couples immediately.

Over the weekend, Prop 8 lawyers tried appealing to Supreme Court Justice Kennedy to require the Appeals Court to reinstate the stay, but the request was denied, possibly because they no longer have standing based on the Supreme Court’s decision.

Proposition 8 is still the law in California. Keep in mind, that Judge Walker’s Federal District Court decision did not apply statewide, but merely enjoined two counties, Alameda and Los Angeles, from denying a marriage licenses to the four plaintiffs in the case. 

More importantly, federal courts cannot overturn a state action without a decision from at least the appellate level. Such a decision no longer exists since it was vacated by the Supreme Court last week. And now, because of the US Supreme Court’s denial of standing for the Prop 8 legal defense team, there is no longer any party that has standing to appeal it. It is a legal conundrum. 

Evidently, the Governor and Attorney General, both of whom took oath’s to support and defend the state Constitution, believe they can ignore it because there is no one to hold them accountable for their actions. If this is not tyranny, I don’t know what is.

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