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The Judicial Outcome on Prop. 8: A Fundamental Attack on Democracy?

The popular will of the people of California on marriage was thwarted because of the refusal of state officials to defend the ballot initiative in court.


| Posted 7/1/13 at 4:22 PM

Jamison Wieser/Wikipedia

WASHINGTON — Executive branch officials at the state and federal government levels are increasingly ignoring laws they dislike, especially those pertaining to the defense of marriage.

This trend places citizens who support existing laws that define marriage as the union of one man and one woman in a bind because they may not have legal standing to defend those laws in court when their elected officials refuse to do so.

“This is a devastating trend across the courts on a wide array of legal issues,” Peter Breen, executive director and legal counsel of the Thomas More Society, told the Register.

In decades past, executive-level leaders would refuse to enforce laws only for grave reasons and after extensive deliberation, Breen said.

“Now, they fail to enforce laws because they don’t like the policies, not because they disagree with the constitutionality of those laws,” Breen said, adding that executive officials appear to be less likely to use prudence and restraint when exercising their powers.

The U.S. Supreme Court ruling this past week on the Proposition 8 initiative in California underscores the issue.

In one of its two June 26 marriage-related decisions, the Supreme Court ruled 5-4 that the same-sex “marriage” opponents who were defending Prop. 8 did not have the legal right — or standing — to defend the law in the federal courts.

In addition, on June 30, Justice Anthony Kennedy denied Proposition 8 supporters’ request to temporarily bar same-sex “marriage” in California. According to The Associated Press, Kennedy turned down the request “with no additional comment.”

A coalition of traditional-marriage supporters — including, the official proponents of Prop. 8 — tried to defend the state constitutional amendment after a federal judge ruled the law unconstitutional in 2010.

About 52% of Californians voted for Prop. 8, a 2008 ballot initiative that amended the state Constitution to define marriage as the union of one man and one woman. The California Supreme Court upheld the constitutionality of Prop. 8 in a May 2009 ruling.


Schwarzenegger and Brown

However, former Gov. Arnold Schwarzenegger and Attorney General Jerry Brown — the current governor — declined to defend Prop. 8 in court when two same-sex couples sued in federal court for the right to “marry” in California.

“It’s a pretty big deal for an executive branch official not to defend his own constitution,” said Breen, who added that the Supreme Court had in effect undermined California’s public initiative system that allows citizens to vote on their laws.

“This shows the importance that people have to elect executive branch officials who will defend their laws,” Breen said. “Elections have consequences, now more than ever, especially with executive branch officials now ignoring the laws.”

Archbishop Salvatore Cordileone of San Francisco, the chairman of the U.S. bishops' Subcommittee for the Promotion and Defense of Marriage, told Catholic News Service in Rome after the Supreme Court ruling on Prop. 8 that the “future of our democracy” is “very, very worrisome.”

Prop. 8’s proponents hired legal counsel, raised money and invested hard work to defend the law when the state’s leaders refused, the archbishop noted.

“Now, they’re being told that those elected officials charged with the duty of defending the laws of the state can refuse to do their duty simply because they disagree with the law and disenfranchise 7 million voters,” Archbishop Cordileone told CNS.

Thomas Peters, a spokesman for the National Organization for Marriage, which defends the institution of marriage, said the Supreme Court nullified the “people’s veto” in the initiative system.

“Basically, now it’s the politicians that have the veto,” Peters told the Register, adding that the Supreme Court’s ruling was not just a “disaster” for marriage, but for other issues across the political spectrum.

“This is simple lawlessness,” Peters said. “People should fight hard to replace politicians who refuse to follow their oaths of office.”


National Implications

Theoretically, what happened in California could be replicated in any of the 30 states that currently have constitutional amendments banning same-sex “marriage.” If those state’s governors believe it would be in their political interests to support same-sex “marriage,” then they could simply refuse to defend those laws when homosexual-rights groups sue them in court.

“Gay marriage is the machinery by which more and more power is transferred from the people to the elite,” Peters said. “Elected officials must represent the interests of the people who elect them.”

Defenders of traditional marriage avoided a Prop. 8-like situation in Illinois in 2012 when two same-sex couples sued the Cook County clerk — a supporter of same-sex “marriage”— by claiming his office’s refusal to grant them marriage licenses violated the Illinois Constitution.

The Illinois Attorney General’s Office intervened in the lawsuit not to defend the law but to attack it as unconstitutional, Breen said.

“Had nothing else happened, the marriage law would have been defeated without the other side firing a shot,” said Breen, who added that the Thomas More Society managed to organize five other county clerks to intervene and defend the law in court.

“Without that, it might have been a Prop. 8 situation,” Breen said, adding that the California case may provide some lessons on how to fight litigation over the redefinition of marriage.

“We have to continue to be vigilant to make sure we have standing to be in court,” Breen said, adding that the executive branch’s refusal to enforce and defend laws puts the whole legal system in bizarre circumstances.

“The executive branch is not supposed to be exercising this kind of power so willingly and in non-emergency situations,” Breen said.

The trend does not just apply to the states. In February 2011, President Barack Obama instructed the U.S. Department of Justice to not defend Section 3 of the 1996 Defense of Marriage Act that prohibited the federal government from recognizing same-sex “married” couples for the purposes of federal benefits.

The Republican-controlled House of Representatives stepped in to defend DOMA, which the U.S. Supreme Court on June 26 also ruled to be unconstitutional for violating the Fifth Amendment’s protections of due process.

Also, in June 2012, Obama announced that his administration would no longer deport young undocumented immigrants, but would instead seek to grant them special work visas. Critics said the president’s move violated federal law and was an unconstitutional power grab.


‘Wake-Up Call’

“This whole thing is kind of coming from the top right now,” Peters said. “This has to be a wake-up call for people at the end of the day. Presidents and governors are voted into office, and people need to send the message they can be voted out."

“I think it’s undeniable,” Peters added. “We are losing more and more of our democracy.”

Breen said he did not know how to reverse the trend.

“Congress will have to take a look at ways to curtail the executive power,” Breen said, adding that, ultimately, the electorate needs to send a message to elected officials that they will not tolerate end-runs around the rule of law.

Said Breen, “We on our side have to be more vigilant about this.”

Register correspondent Brian Fraga writes from Massachusetts.