Wednesday, June 26, 2013

The Supreme Court Ruling on Proposition 8

This is a quick explanation of the actual Supreme Court ruling on Proposition 8. Unfortunately it is not actually about Proposition 8, it is about the people's right to defend it.

Proposition 22

In California, voters passed a law (Proposition 22) in 2000 defining marriage. The Gay Marriage community threw money at it until they found a loophole they could invalidate it with. The decision by the California Supreme Court was that since the California constitution did not have any words about Gay Marriage in it, a law containing those words was unconstitutional. Proposition 22 was invalidated.

Proposition 8

Insensed at being disenfranchised by money and lawyers the people of California decided to change California's constitution to include the wording defining marriage as between a man and a woman. The Gay Marriage supporters filed suit to prevent the initiative from being placed on the ballot. The California Supreme Court upheld the right of the initiative to be placed on the ballot. It again passed and the Gay Marriage supporters went to task throwing money at the problem trying to find a loophole.

Proposition 8 Upheld

The California Supreme Court upheld the Proposition 8 as voted. The case was then taken to Federal Court.

The People Fight Back

When suit was filed in Federal Court to get rid of the initiative that was passed by the people...again, the people who were supposed to uphold the law decided not to. It is the job of elected officials to defend the laws voted in by the people otherwise laws mean nothing. Governor Schwarzenegger decided to force his opinion on the people by not defending the case and allowing the plaintiffs to win by default. The people who passed the law asked to defend the law they passed and were allowed to be named as defendant in the trial.

The People go to Trial

The case was heard by the Federal Court and Proposition 8 was overturned because it was not in the state's interests to allow the banning of Gay Marriage. This judgement was from a self identified Gay Judge. It was in his own self interest to have Proposition 8 repealed and I'm surprised this was allowed. The people then appealed this judgement with the Ninth Circuit Court of Appeals the Federal Appellate court for California. They ruled that the California Amendment to its Constitution was Unconstitutional according to the Fourteenth Amendment of the US Constitution.

US Supreme Court Ruling

The appeal to the Ninth Circuit Court of Appeals judgement went to the US Supreme Court and they made an odd decision. But let's recap first:

  1. Prop 22 passed.
  2. Prop 22 repealed by CA Supreme Court.
  3. Prop 8 proposed.
  4. Prop 8 allowed on ballot by CA Supreme Court.
  5. Prop 8 passed.
  6. Prop 8 Upheld by CA Supreme Court.
  7. Leaders won't defend law in Federal Court.
  8. The people defend the law instead.
  9. Gay Federal Judge repeals Proposition 8.
  10. Ninth Court Of Appeals Upholds Gay Judge's decision.

So the US Supreme Court Ruling today was not to repeal Proposition 8. It was not to uphold the California Supreme Court Decision. It was not to uphold the Ninth Court's decision. What was it you ask?

The US Supreme Court ruled that the People are not allowed to defend a law.

What are we supposed to to when our leaders go against the public will? How are we supposed to defend ourselves? We cannot. Or at least that's what the US Supreme Court ruled today. If the Governor at the time, Schwarzenegger, had actually done his job Proposition 8 would have been upheld and would be in place.


The smart part of their ruling is that it has nothing to do with Gay Marriage. They completely skirted the issue. This will not affect states where the laws have already passed. Nor will it prevent future laws from being passed. This only affects laws challenged in Federal Court where the people with the standing to defend them refuse to do so. I can only hope that the case is refiled and the Governor steps up to do his job. For now:

Be legal.


  1. The timeline analysis, and the basis of the ruling is interestingly put. I don't diasgree with those pieces, of course. I do disagree with 2 key philosophical points, however: 1) that the executive branch must defend the laws the people pass. All branches of government, like any organization, must decide where to put its energy. We don't deport very often, some states no longer enforce marijuana possession laws, just to name a couple. The Govurnator decided not to defend Prop 8, and I'd just give him credit for knowing a losing battle when he sees one. 2) The "US Supreme Court ruled that the People are not allowed to defend a law". That's just incorrect. First, Prop 8 was a CA constitutional change to overturn the CA Supreme's decision. There is a difference between laws and constitutional changes. Second, there are several hundred years of precedent to say that if you are not the injured party, you cannot sue. You cannot sue on behalf of someone else, and you cannot prosecute a case in which you are not harmed. SCOTUS ruled instead that because the State would be the injured party, no random collection of citizens could appoint itself the power of the state to defend a law. It is the prerogative of the executive branch to decide how, or if, to prosecute any laws. It is likewise that branch's prerogative to take any legal option available to a private citizen. If you get sued, you always have the right to not defend yourself. The state has the same ability.

    I think, in the end, that SCOTUS' decision to leave this to the states is sound. It was the most likely outcome in any case, and follows quite a long history of marriage laws in the US.
    -Tom Farnsworth

  2. I'm not used to comments on my blogs. I didn't notice this till today. Sorry about that.

    1) "government...must decide where to put its energy" Seeing that this didn't require much energy I hardly find this a reasonable argument. By comparison marijuana & immigration are huge drains on the coffers of Government.

    2) I fully understand the argument of standing. Defending laws is different than a regular court case. The Attorney General of California would have had standing in the case. The fact that the people who passed the law were taking his place should not change that standing. We should be allowed as a people to step up when our leaders fail us. Hence "the US Supreme Court ruled that the People are not allowed to defend a law."

    "SCOTUS' decision to leave this to the states is sound" - Unfortunately that was not the ruling. It was left to a singular gay federal judge. Not the California Supreme Court, the panel of judges that ruled that the right to vote on the law was valid and that the law was also valid.

    I do not think Marriage applies to the same sex couples. It is a classification that does not define their unions and I think it's insulting to what they stand for to force them to adopt it. The propoganda machine has convinced them that this is a right, equal in value to the abolishment of slavery. And that is the real offense, forcing them to deny their own virtues in an effort to conform to another that they will never live up to.

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