Posted on 02/18/2014 4:52:33 PM PST by fwdude
With the flurry of lawsuits attacking marriage in a growing number of states, a question arose in my mind regarding the implications of a favorable opinion regarding the legitimacy of Section 2 of DOMA. This issue looks certain to be heard by the U.S. Supreme Court, possibly even leapfrogging federal appellate courts to do so, considering the confusion caused by these Marxist original jurisdiction courts.
IF Section 2 of DOMA, the right of states to define and enforce their own definition of marriage, is upheld in the USSC (I DO NOT want naysayers dismissing this possibility - that is NOT the discussion here), what then happens with the issue of California's Constitution, which now contains the traditional, true definition of marriage for California?
The Leftists of that state are sitting on their laurels, so sure that the issue is settled and dead, by a technicality regarding "standing" to defend the State constitutional amendment. But if Section 2 is affirmed, and states ARE determined to be free to enforce their own constitutional amendments and laws defining marriage, will California then be legally required to abide by their legally passed constitutional amendment, killing counterfeit "marriage" in their state?
I'm not an expert, and I've done very little research, but I cannot seem to find anything addressing this issue. The presstitutes aren't interested, since they are under the certain impression that we are now a "gay" nation without the possibility of returning to sanity.
Secondly, who will hold the CA state government to their responsibility to observe their constitution?
A good question. If you don’t support your own amendment in court I’m not sure if anyone would care if they didn’t abide by it per civil law, as in continuing to perform ‘gay marriage.’ Did those people get voted out or their popularity plummet enough for people to vote them out, or hasn’t enough time passed?
When an amendment gets overturned does the state have to then actually pass a marriage law if they want to or do they have to just start recognizing ‘gay marriage’ as the judge’s decision is enough? Seems like I have seen it both ways but I could be wrong about that.
In any case I just don’t see a restored prop. 8 surviving a repeal vote. It only passed by 52% in 2008, that’s six years ago or so. In 2000 CA’s prop. 22 passed by 61%, the same amount NC passed their marriage amend. by in 2012.
Freegards
There is a court ruling that Proposition 8 is unconstitutional. Even if SCOTUS rules that states may ban gay marriage (and I agree with you that there is a good chance that SCOTUS may rule that way), the SCOTUS ruling will not automatically resucitate Prop. 8, because there is a court judgment in place that is now final. If SCOTUS rules that gay marriage bans are constitutional, the State of California (meaning its Governor or Attorney General— no one else has standing) could try to have the old court ruling overturned, but: (a) there’s no chance the current Governor or AG would do that, and (b) setting aside a final court ruling based on a later change in the law is not easy, although it is theoretically possible. (A motion would have to be made under Rule 60 (b)(5) of the Federal Rules of Civil Procedure.)
If you recall, the California Supreme Court ruled in favor of Prop 8 proponents in every case against them. They ruled that the amendment was properly enacted, and was valid.
Forcing enforcement would then be solely a state issue. And there are still plenty of conservative county clerks and local governments with standing which would not stand for the California Constitution being blatantly violated. In the event of non-enforcement, the issue would probably have to go through the courts again until the state Supreme Court heard it, and then their decision would be final.
Regarding amendment repeal, have you ever asked yourself why the opponents of the marriage amendment didn’t simply go this route to begin with, instead of waiting nearly 5 years for the issue to be slugged out in kangaroo courts? They incessantly crowed that California was overwhelmingly “pro-gay” and so there shouldn’t have been any problem repealing it through another referendum.
I think it’s telling that they do NOT want another vote, because they suspect that the state may NOT be quite as liberal as they think - in other words, they don’t believe their own concocted polls!
Remember also that an effort WAS launched to repeal the marriage amendment, but it fell flat when the organizers determined that there was not enough support for it.
Supreme Court decisions on issues supersede appellate federal court opinions, I believe. Otherwise, we would have a patchwork of “grandfathered” unconstitutional laws in a lot of areas throughout the country.
http://www.freerepublic.com/focus/f-news/3111732/posts
The interesting part of this case is this: if the Supreme Court overturns these federal courts. I don’t think SCOTUS will decide that Gay Marriage is a constitutional right (I could be wrong, but it would have virtually no rational or historical basis). If they overturn these rulings, then California would be in the situation where the Federal Judge is tacitly overturned. He was upheld because of standing, not on the merits.
That would mean the California Constitutional amendment is constitutional but the state government refuses to abide by it.
I think in general, Roe v. Wade is looked at as terrible juris prudence that did a disservice to Constitutional Law even by liberals (even though liberals think it was worth the sacrifice)
The legal opinions by lower courts on gay marriage have been borderline stupid as far as legal argument goes. The SCOTUS probably did a good job recently, because it's easy to argue that marriage is a state issue (DOMA) and that those in California lacked standing.
But to overturn a State Constitution (such as Oklahoma) is an entirely different ball game.
One argument, that the state has no compelling interest in discriminating between homosexual and heterosexual couples is ludicrous. Civil marriage has always been about protecting the rights of children produced in those marriages. Its clearly spelled out in Blackstone's Commentaries. If they throw out Blackstone, they may as well stick a knife in Stare Decisis.
The equal protection argument? Everyone has the right to marry someone of the opposite gender i.e. making a couple that can theoretically conceive a child that has unalienable rights that the state is bound to protect.
They can argue 1+1=3, but history will paint them as idiots, and most of them know it
Thanks for the reference. I’ll look up that thread.
What about a person in a gay marriage, decides they don't like being married, and instead of divorce, declares they are not married and need not bother with a divorce because of the California Constitution.
How does it go for him?
I think they wanted to use the SC court because they were hoping for a broad decision that would do away with all the state amendments at one time. I think they would go the popular vote process in a heartbeat in CA if they thought they really needed to. Maybe it would still be really close like you say, and they don’t want such a visible defeat. But do you really think 2014 CA would still vote 52% for keeping it? That would be a huge upset for them for sure.
There have been some states recently that rejected amendments. Didn’t Maine actually accepted it by a 53% popular vote in 2012?
Freegards
I used to think that enough people would get sick of the increasing shoving of homosexuality in their faces (Macy's New Years Parade, Grammies, pop-culture adulation, etc.) to induce a backlash, but either the populace is getting worn down, grinded down, by the flood of perversion flashed constantly in their faces, or they're just leaving homo states for sane ones. Again, I don't think that the sodomite lobby is entirely confident that even now, they would prevail in a fair election.
Regarding Maine, I have my own theory that the elections of 2012 were so perverted with fraud, there was no way that the state would fail to pass their marriage redefinition law. I think there is ample evidence of this, but it is not being investigate for political reasons. After North Carolina defeating them with their marriage amendment earlier in that year, they were not going to let that happen again and stymie their momentum.
Well, isn’t it something like 50-60% of the folks that can vote do so, at least in pres. elections? So around 90% of those that do are split nationally around 50% R/D and the other 10% are mouth breathers that can be swayed by a last minute scandal or a particularly impressive debate/campaign commercial. Not the stuff to indicate a voter’s revolt can happen, in my opinion.
I don’t know, I would say if there was fraud it’s probably built into the system all along. And if there is such fraud it must not be too ridiculous because we didn’t see states like Mississippi or Alabama reject their amendments, or have surprisingly low win% totals, only states where it is reasonable for ‘gay marriage’ to win with a popular vote. In any case, if we are at the point where pols don’t utter the word fraud despite having the evidence for political reasons, or are ignored by the majority, those places are pretty much done anyhow, aren’t they?
Freegards
In short. Prop 8 is dead. It matters not what SCOTUS does.
Can you provide any reasoning at all for your statement, other than a pat, unsupported opinion?
As precedent for future cases, certainly. As between the original parties to the original case, generally not, once the lower court decision became final. So the State of California is bound by the injunction not to enforce Prop. 8. (As I said above, the State could move to vacate the injunction based on the subsequent SCOTUS decision [presuming there is one], but the current Governor and AG aren't going to do that.)
He might have standing. Good point; hadn't thought of that.
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