Posted on 07/05/2008 10:21:14 AM PDT by Daniel T. Zanoza
RFFM.org Guest Column by Gregg Jackson *
About a month ago, the California Supreme Court, in a 4-3 decision, issued a declaratory opinion that Proposition 22, which states that, "Only a marriage between a man and a woman is valid and recognized in California," enshrined into statutory law by 61.4% of California voters in 2000 (over four million voters), was "unconstitutional" on the basis that "gender discrimination" violates the equal protection clause of the state constitution.
The LA Times reported:
"The California Supreme Court struck down the state's ban on same-sex marriage Thursday in a broadly worded decision that would invalidate virtually any law that discriminates on the basis of sexual orientation."
Sadly, many of the leading "conservative" and "Christian" pro-family organizations such as AFA (American Family Association), Liberty Council, ADF (Alliance Defense Fund), FRC (Family Research Council), ACLJ (American Center for Law and Justice) and Focus on the Family ...
(Excerpt) Read more at rffm.typepad.com ...
The people of California amended their constitution in full knowledge of the equal protection clause contained therein. Shouldn't this be a case where the specificity of the marriage clause supersedes the more general equal protection clause?
I think the legal reasoning is flawed, the courts can strike down an initiative if it violates the Constitution, or basically make it null and void. Once that was done Prop 22 had no binding affect on Schwarzenegger since Prop 22 is no longer law. Schwarzenegger could have refused to allow same sex marriage and the courts would be incapable of forcing his compliance. But after the court ruling there is nothing in law preventing same sex marriage. The courts could then have forced county clerks to accept marriage applications from anyone not forbidden to be married.
I think the Court ruling was wrong, but bad legal reasoning on the part of the court does not justify bad legal reasoning trying to reverse that decision. The Constitution can still be revised and if the Court had any concern for its proper role it would have left same sex marriage illegal until the issue could be clarified by constitutional amendment.
Prop 22 was not an Amendment, they are trying to Amend the Constitution now that the Court has struck down Prop 22. Prop 22 the same level as a law and the Constitution always takes precedence over a law.
I’ll admit that I don’t know. However, is everyone that has opined thus far saying that Gregg Jackson’s opinion is wrong? If he has a valid point, it would seem that the next stop should be the SCOTUS, i.e., I think that would be where you would go if the claim is that the CA Supreme Court did not follow the CA Constitution.
Thanks for that correction ... dunno why I was under the impression it was done as an amendment.
Allowing the Court to selectively strike language from and initiative would make legal the Courts legislating from the bench. Imagine how easy it would be to alter or even reverse the intent of a law by striking a few words. The Court needs to strike all of Prop 22 not just specific language. The specific language was what the Court declared made Prop 22 unconstitutional. Once Prop 22 was declared unconstitutional, according to the court, there was nothing preventing same sex marriage.
So long as the governor and legislature accept that what the court says is holy writ, then the powers of the court are, in fact, unlimited.
The courts can legislate all they want because the other branches have ceded unlimited power to the courts.
I am not familiar enough with the California Constitution, but Article III Section 2 of the US Constitution explicitly gives congress the power to write the regulations the Court follows and even limit its jurisdiction. Following the Civil War Congress did exactly that to prevent the Court asserting Habeas Jurisdiction over Southern Rebels. Revising the California Constitution or holding a constitutional convention could reign in the California Supreme Court.
An initiative by the people is the same as a law by the legislature. The Supreme Court can review it and find it unconstitutional; as the Supreme Court did in the case of Proposition 22. This guy’s argument is bogus. If he were correct, then it would be legal in California, through the initiative process to pass initiatives segregating the schools, banning guns, taking the vote away from women and those who don’t own property, even establishing slavery! And the Courts and legislature and Governor in the state of California could not do anything about it. What utter nonsense. Of course the Court can determine if an initiative is constitutional or not.
When on earth are the Sean Hannitys of the world and the fools that have supported both Romney and Schwarzenegger going to realize such RINOs are liars that will betray conservatives as soon as it is convenient for them?
“I think the legal reasoning is flawed, the courts can strike down an initiative if it violates the Constitution, or basically make it null and void. Once that was done Prop 22 had no binding affect on Schwarzenegger since Prop 22 is no longer law. Schwarzenegger could have refused to allow same sex marriage and the courts would be incapable of forcing his compliance. But after the court ruling there is nothing in law preventing same sex marriage. The courts could then have forced county clerks to accept marriage applications from anyone not forbidden to be married.”
I believe you are right about that. The arguments Mr. Jackson made could turn around and bite him in the posterior.
Example: It would be very easy for someone to substitute the word Jewish for ‘same-sex’ in Mr. Jackson’s screed. Then, it will sounds as if Mr. Jackson is arguing that Jewish marriage is illegal, and since the ban was passed by majority vote, the court has no power to overturn the anti-semitism.
Example: Also, it would be very easy for someone to substitute the word Blacks for for ‘same-sex’ in Mr. Jackson’s screed. Then Mr. Jackson would seem to be advocating racism.
Sure, ‘same-sex’ marriage is a controversial subject. However, making the faulty arguments, which Mr. Jackson uses, does not favor any case against ‘same-sex’ marriage.
Another counter argument to Mr. Jackson would be to compare his arguments to the case of two wolves and a sheep voting on what’s for dinner. Someone will do it.
Good Points!
I also rather expect that if the antigun forces get a solid majority in both houses 2nd Amendment issues will be taken away from the Court's jurisdiction and, if successful(see above), the push for confiscation will begin in earnest.
One thing that argues against any need for gun confiscation is our military is so good, as evidenced by taking on armed thugs in urban Iraq settings; if they can be convinced to follow orders civilian ownership of the types of guns we have available is irrelevant.
See examples: Jurisdiction stripping
http://en.wikipedia.org/wiki/Jurisdiction_stripping
When a republic puts troops in the streets to maintain order the Republican and democratic characteristics of the society will disappear quickly. They follow orders and if they are in the cities the chief order giver giver is in DC.
Don't trust the MSM headline. Romney fought for marraige between a man and a woman. Though the MSM would have you believe otherwise. Because of Romney it will be on the Ballot in Nov. 2008 where the citizens can give the legislature and the court in Mass the final smackdown. Deval has tried to stop it but couldn't.
Romney just bought a house in Duncan Hunters backyard. He may go for Gov. of California and fight for marraige there.
________________
When the Massachusetts Supreme Judicial Court ruling in the case of Goodridge v. Department of Public Health legalized same-sex marriage in Massachusetts, Gov. Romney identified and enforced a little-known 1913 state law that forbids nonresidents from marrying in Massachusetts if their marriage would not be recognized in their home state. This prevented gay couples living outside Massachusetts from flocking to MA to be married and then returning to their home states to demand the marriages be recognized, thus opening the door for nationwide same-sex marriage. Implementation of the 1913 law was contested in court by same-sex couples from outside MA, but the Massachusetts Supreme Judicial Court ruled in March, 2006 to uphold the application of the law. (Jay Lindsay, "Mass. high court says nonresident gays cannot marry in state," The Associated Press, 3/30/2006)
Gov. Romney provided active support for a citizen petition drive in 2005 that collected 170,000 signatures for a state constitutional amendment protecting marriage, breaking a 20-year-old record for the most certified signatures ever gathered in support of a proposed ballot question. He rallied citizens to place pressure on the Legislature for failing, through repeated delays, to fulfill their constitutional obligation to vote on placing the marriage amendment on the ballot. Gov. Romney filed suit in the Massachusetts Supreme Judicial Court (SJC) asking the court to clarify the legislators’ duty to vote on the issue of the amendment, or place the amendment on the ballot if the Legislature failed to act. The SJC declared that legislators had a constitutional duty to vote on the petition in a ruling handed down on Dec. 27, 2006. The suit was successful in pressuring the Legislature to vote on the issue of the amendment. A vote was taken on January 2, 2007 and the measure passed. Through Governor Romney’s considerable efforts and leadership, a state constitutional amendment defining marriage to be between one man and one woman passed a critical hurdle to get it placed on the 2008 ballot where voters in Massachusetts would have the power to restore traditional marriage in their state.
Update: Democrat Governor Deval Patrick, a proponent of gay marriage, lobbied Massachusetts lawmakers to kill the proposed constitutional amendment. In a vote of the MA Legislature on June 14, 2007 the amendment received 45 votes, failing to get the required 50 votes necessary to place the amendment on the 2008 ballot. The measure needed 50 votes in two consecutive legislative sessions to advance to the ballot, and it had passed with 62 votes at the end of the last session in January. Commenting on the latest vote, former Gov. Mitt Romney said, "Today's vote by the State Legislature is a regrettable setback in our efforts to defend traditional marriage. Unfortunately, our elected representatives decided that the voice of the people did not need to be heard in this debate. It is now even more important that we pass a Constitutional amendment protecting traditional marriage. Marriage is an institution that goes to the heart of our society, and our leaders can no longer abdicate their responsibility." (Steve LeBlanc, "No Gay Marriage Vote for Massachusetts," The Associated Press, 6/14/2007)
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.