Wednesday, July 17, 2013

The Real Story on Prop 8 in California

Supreme Court of the United States


No. 12-144
On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit.
Argued March 26, 2013, Decided June 26, 2013 OCTOBER TERM, 2012

Thanks to Diane Lenning for posting this:

Here just part of it! There is more so please read the article. 


"Confused about what is really going on with Proposition 8? You’re not alone.

When the U.S. Supreme Court announced its decision in Hollingsworth v. Perry, we fully expected it would 
do one of two things: either (1) uphold the voters’ right to protect traditional marriage, or (2) declare a new constitutional “right” to homosexual marriage. 

Either way, it would have given us a clear-cut, definitive answer.

But the Court did not reach either result. Instead, it left us in legal limbo, allowing hostile government officials to capitalize on the resulting confusion, and then lawlessly cease to enforce Proposition 8 throughout California.

Let me try to explain. It is a difficult task, because frankly it doesn’t make much sense.

First of all, the Supreme Court did not rule against Proposition 8.

This has been widely misreported in the media. In reality, a bare majority of the Supreme Court Justices (5 to 4) decided that the Court would not even reach the merits of our case. Rather than determine whether or not Prop 8 is constitutional, the majority avoided the key issue by dismissing the case for “lack of jurisdiction.”

Even though our State Supreme Court of California had unanimously designated us—as the Official Proponents of Proposition 8—to defend the vote of the people (in lieu of government officials who refused to do so), the majority of the nation’s highest court refused to recognize our role as the measure’s official defenders.

Unbelievably, the majority opinion said that only government officials such as the Governor and Attorney General can appear in court to defend the law. In other words, the court concluded that government officials can effectively “veto” a vote of the people by rendering an initiative measure defenseless against a federal lawsuit!

Of course the 4 justices of the minority, led by Justice Anthony Kennedy, lodged a vigorous dissenting opinion, explaining that the court majority’s refusal to recognize our legal standing could now allow government officials to do indirectly what the law prevents them from doing directly. 

Second, by finding there was no jurisdiction, the Supreme Court also vacated (erased) the Ninth Circuit’s decision declaring Prop 8 unconstitutional..."

"...This is crucially important, but widely misunderstood. Even now, I talk to media reporters who still do not understand that, as a consequence of finding no jurisdiction, the Supreme Court expressly and completely nullified the Ninth Circuit’s ruling against Prop 8, which until then was the only other legal precedent on the books contrary to Prop 8’s validity. 

As a result, the only court decision questioning Prop 8’s validity that remains standing today is the sole judgment of one trial court judge in San Francisco from 2010.

This is where it starts to get confusing…

You see, only appellate courts—not trial courts—can establish binding legal precedent that renders a voter-passed initiative unconstitutional. So, while former Judge Walker of San Francisco could order only two County Clerks to give marriage licenses to the two same-sex couples who filed the lawsuit against Prop 8, he had no authority to nullify Prop 8 statewide.

Third, the Governor’s attempt to force all 58 of California’s County Clerks to disobey the State Constitution is a lawless act.

The plaintiffs who challenged Prop 8 took a big gamble when they picked which defendants to sue. They sued the Governor and Attorney General (who have no legal authority over the issuance of marriage licenses in California) and only two County Clerks (who also agreed not to defend Prop 8 at all).

As a result, the injunction they obtained, requiring marriage licenses for the two plaintiff same-sex couples, is extremely narrow. As they admitted repeatedly during that case, former Judge Walker’s order does not directly bind any of California’s 56 other County Clerks—the only public officials with authority to issue marriage licenses.

Of course, they were hoping for an appellate court, such as the U.S. Supreme Court, to nullify Prop 8 statewide. But as I explained at the beginning, there is no such legal precedent left on the books today as a result of the Supreme Court's decision “not” to get involved.

That is why the Governor acted well outside of his legal authority when his administration issued an executive order telling all 58 County Clerks to stop enforcing Prop 8, a state constitutional provision. At least 56 of those County Clerks had nothing to do with the lawsuit against Prop 8, and—more importantly—the court judgment against the Governor makes no difference because he is not the “boss” of County Clerks. County Clerks are independent local officials who take an oath to uphold the Constitution of the State of California—including Proposition 8!

Finally, our new appeal to the California Supreme Court could be our last chance to restore the rule of law.

Nine years ago, our State Supreme Court intervened to stop the lawless issuance of same-sex “marriage” licenses in San Francisco, ruling that other public officials, such as then-Mayor Gavin Newsom, have no authority to tell County Clerks to disobey state law.

Today, we face the same situation, except this time it is the Governor telling County Clerks to disobey the State Constitution.

That is why, a few days ago, we filed a legal petition in the State Supreme Court, asking the seven justices to—once again—restore the rule of law and put an end to the Governor’s illegal attempt to impose same-sex “marriage” throughout California without any legal precedent. We named all 58 County Clerks in our lawsuit, as well as the Governor and Attorney General.

After giving our legal petition an initial look, the State Supreme Court issued an order directing the 58 County Clerks, the Governor and the Attorney General to file legal briefs in response to our petition by late July. The Court also directed us to prepare and file our rebuttal briefs by early August.

Additionally, we asked the Court to create a temporary “stay” to prevent the continued defiance of Proposition 8 by public officials while the case is pending and until a final decision is made. The Court denied that request on Monday, but the merits of our case continue to be teed-up for consideration by the Court in August.

So, once again, our Prop 8 Legal Defense Team is hard at work, led by a crew of outstanding attorneys from our good friend and ally, Alliance Defending Freedom.

And once again we need your help.

Will you join us one more time in this important fight to restore the rule of law and protect Proposition 8 against the lawless acts of politicians hell-bent on killing traditional marriage?

As I said, the federal courts have decided to stay out of this issue, leaving it to California to decide. Yet, with public officials determined to subvert the vote of the people at every turn, even if it means gutting the initiative process and ignoring the rule of law, it is up to us to represent the voters and fight with all our strength to protect the vote of the People.

So please help us win this fight in the California Supreme Court to restore the rule of law with a tax-deductible and confidential contribution of any size today.

I hope this has helped to clear up some of the confusion surrounding the unbelievable circumstances we find ourselves in. If it seems to defy reason, you’re right. 

But when our government becomes one of “men” rather than of “law,” the fight becomes all the more difficult… and all the more important.

Thank you for your continued support."
Very truly yours,

Andy Pugno
Prop 8 General Counsel

P.S. The rule of law has broken down in California. The people’s power of initiative hangs in the balance. Please help us win this fight to restore order and uphold Prop 8 today. Thank you!

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