Judge Vaughn Walker rendered monumental states rights-deference under the Tenth Amendment in declaring the 1996 federal Defense of Marriage Act’s disparate treatment of couples lawfully married under state laws unconstitutional. He then delivered a devastating blow to states rights in the Proposition 8 case:
In a pair of 5-4 rulings on the final day of the court’s term, the justices struck down the 1996 Defense of Marriage Act, which denied federal benefits to gay couples married under state law, and let stand a ruling that found Proposition 8, a 2008 voter initiative that ended same-sex marriage in California, unconstitutional. [With respect to the latter] Chief Justice Roberts wrote that, despite the California Supreme Court’s own view that initiative sponsors are entitled to defend their legislation in court, the case must be dismissed. Under federal precedents, he said, the initiative sponsors were merely “bystanders” with no standing to appear in court.
“We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to,” he wrote. “We decline to do so for the first time here.”
In dissent, Justice Kennedy wrote that the majority failed to understand “the basic premise of the initiative process” that has long shaped public policy in his home state. The California initiative process gives legislating power directly to the people, and with it should come the standing to defend that power in court, he wrote, joined by Justices Thomas, Alito and Sotomayor.
Given Justice Kennedy’s diatribe against opponents of same-sex marriage as bigots in the DOMA decision, it is clear that his motive in wanting to waive over 200 years of federal “standing” law was to use the Prop 8 case to impose same-sex marriage on the 39 states that still authorize only traditional marriage within their borders. So, in one sense supporters of traditional marriage should be grateful for federal standing law as having prevented same-sex marriage from being forced upon the whole nation yesterday, for now.
The California Supreme Court had already declared the Prop 8 referendum amending the state constitution to allow marriage only between one man and one woman, to be constitutional. The people of California had previously passed a statute via referendum overturning a gay marriage statute passed by the state legislature, only to have its supreme court declare that identically-worded statute unconstitutional. Proposition 8 was passed to override that ruling.
It appeared that government of, for and by the people would stand since a state supreme court is deemed to be the final arbiter of the meaning of its state’s constitution, unless the law violates the U.S. Constitution. Hence the filing of the case of Hollingsworth et al vs Perry et al (previously, and significantly styled, Perry v Brown) in Judge Vaughn Walker’s California Federal District Court by gay marriage advocates.
Judge Walker, a federal judge ethically bound by higher federal court precedents but with no Ninth Circuit Court of Appeals nor U.S. Supreme Court precedents to rely upon, declared there to be a right to same-sex marriage in the Fourteenth Amendment of the U.S. Constitution. We assume he “found” it in the same invisible “pneumbras and emanations” where the “right” to abortion privacy was found 40 (Roe, 1973) and 48 (Griswold, 1965) years ago, respectively.
Then, a California electorate first defied by their own elected representatives in the state legislature and then by their supreme court, were betrayed by their elected Governor Jerry Brown who refused to defend the state law he took an oath to defend. Governor Moonbeam gave the finger to the people while embracing the only thing to which he gives allegiance: modern day liberalism aka moonbeam il-logic.
So, what are the people of California to do now? It appears that the ways that self government on the issue of marriage law in the Golden State can be re-established are to:
1) Pass a new constitutional amendment via ballot initiative and elect Republican governors for as many years as it takes to appeal the case to the U.S. Supreme Court; or
2) A federal district or circuit court of appeals opinion on this issue rendered in another state is appealed to the U.S. Supreme Court; and
3) The people of the United States elect a Republican president and Republican majority to the U.S. Senate that will appoint the next justice to a slot vacated by either Justice Kennedy, Breyer, Sotomayor, Ginsburg or Kagan.
Before the Age of Obama, we conservatives regularly and rightfully bemoaned judicial activism that imposed minority liberal views on a center-right nation in defiance of the people and their Constitution. But now, despite the rising of a conservative majority on the issue of marriage in arguably the most liberal state in the nation, a single liberal judicial oligarch manages to usurp the right of We the People to govern ourselves. Meanwhile more and more of the people, as judged by the unique re-election of the most liberal (and singularly economically failed) president in our history, move further left.
Makes one feel like a kid in the back seat of the car of Robert Bork, author in 1986 of the seminal Slouching Towards Gomorrah, continually asking: Are we there yet?
Mike DeVine’s Right.com
“One man with courage makes a majority.” – Andrew Jackson