I find it a somewhat delicious irony that on the day the Supreme Court hands down its gay marriage decisions, a day I had planned on blogging about the debate on gay marriage. But, I had been planning that before knowing that on the actual day, I would be more focused on writing the first chapter of the second part of my epic.
I have long thought the debate on this important issue, this fundamental social institution, has long been particularly lame. And from reading my Facebook feed, see that it has become ever more so, with all too many (but fortunately not all) treating the decisions not so much as constitutional interpretation and social policy, but as personal validation — as if they needed some government body to decide the “right” way so they can feel recognized. But, that feeling of approval will fade.
That said, I have seen two statements on Facebook which do get at the meeting of the decision, from people on opposite sides of the political aisle. And I’m sure that in due course, I will discover some thoughtful blog posts and editorials. But, for now, while I have much to say about marriage, my mind is on my book. At the end of May, I finished the first draft of the first part of the book (over 150,000 words) and spent the better part of this month revising it, having intended today to print out the whole thing and take it to a printer (so I can share it with friends). (As I begin serious work on the second part.)
So, let me offer the meaningful Facebook post for your consideration. My friend Harmeet Dhillon (my predecessor as president of the U-VA Federalist Society) offered this on the standing issue which served to overturn Prop 8:
As a political law practitioner, the broader implication of today’s Prop 8 ruling is 1) a narrow interpretation of standing and 2) apparently there is no recourse by the citizens if their elected constitutional officers (here, the Attorney General) simply refuses to enforce a law passed by the majority of voters. The former is likely an artifice of the Court trying to dodge a merits decision on a very controversial issue, but the latter severely undercuts the power of the citizen-sponsored proposition in California, regardless of subject matter or what political persuasion is affected. A sobering reminder that your vote on propositions sort of matters sometimes, while your vote on who is the Attorney General matters a whole lot. And not enough of you vote!
Our left-of-center reader Rob Tisinai gets that state recognition of marriage is about more than just “rights”:
VERY COOL: SCOTUS grants us the dignity of recognizing we not only want the rights of marriage, but the responsibilities too. We are not cry-babies demanding rights, but adults with dignity claiming our full citizenship. Quote: “DOMA divests married same-sex couples of the duties and responsibilities that are an essential part of married life and that they in most cases would be honored to accept were DOMA not in force. For instance, because it is expected that spouses will support each other as they pursue educational opportunities, federal law takes into consideration a spouse’s income in calculating a student’s federal financial aid eligibility… Same-sex married couples are exempt from this requirement. The same is true with respect to federal ethics rules. Federal executive and agency officials are prohibited from “participat[ing] personally and substantially” in matters as to which they or their spouses have a financial interest…”
Perhaps later in the day (or tomorrow), I will write a more substantive post.
Or maybe not.
“… apparently there is no recourse by the citizens if their elected constitutional officers (here, the Attorney General) simply refuses to enforce a law passed by the majority of voters.”
Am I the only one who finds that scary? Any of you celebrating the overturning of Prop 8 might want to think about this in other contexts.
Sorry, but the voters of Arizona already know that votes on propositions only – sort of matter. We already had a governer refuse to sign a passed proposition into law. The only difference is that it wasn’t challenged in court. And apparently, this decision says it couldn’t have been challenged anyways. No one would have had standing.
Only obliquely related to your post — this is about your book.
Why print it out? Take the digital file to the printer for output; it’s much easier (and more flexible) for the printer, and thus probably less expensive for you.
Just a thought from someone who works in the printing industry 😉
There have been attempts in here in Washington State to get rid of the initiative (and referendum and proposition) process, precipitated by a successful low-tax/fee activist and his successful efforts (that is, when the state supreme court doesn’t overturn them on a technicality or when the legislature does an end run around them). I’ve always considered myself a small-government libertarian-leaning Republican, but I’m nuancing that to ‘a libertarian populist who votes Republican because the GOP is the only vehicle large enough to make a difference’. The initiative process is becoming one of the few areas in which right-leaning legislation or prevention of left-leaning legislation has a chance of being enacted.
It’s beginning to look like the only tool available to the voters that the government hasn’t broken yet is “recall.”
Claudia, as I got through numerous frustrations relating to the printing today, I wonder if I should have done that. Would have cost me a little more to take it to the printer. But the problem I have is that I don’t have one file for the whole book, but have saved it into separate files for each chapter. . .
Will talk to my printer when I deliver the document. . . , given all the frustrations I am now experiencing.
I am so thankful that someone is seeing this for what it is. It grows harder to go to the polls and vote, when you know that your vote will be invalidated by one person in power.
On the dangers of the state not defending the law…..
I think this point does have some merit, especially since the initiative system was put into place to bypass what was at the time viewed by the public as an unresponsive and corrupt California government.
Butt what are the options here? Should an initiative that is passed be immune to the scrutiny of the court?
I ask you, if the citizens of this strongly liberal state decided to put an initiative on the ballot to ban the Republican Party from the state, which would probably almost certainly pass…. Conservatives; wouldn’t you absolutely demand to take this to court to challenge it and have it overturned? Of course, maybe this is a bad example. They wouldn’t need that initiative, as the Republican Party is almost non-existent anyway. 🙂
Sonic-Indont think the concern is that a referendum shouldn’t be reviewed but what happens if a referendum passes and the elected government refuses to support the law in the courts.
Pretend for a moment that this wasn’t a referendum on SSM but on gun control-the liberal left passes a referendum that restricts the ability to purchase and use fire arms. A conservative to ernment is elected and there is an NRA challenge to the law and the governor decides he is t going to argue in favor of the referendum.
The decision today basically said that the citizens who voted in favor of the referendum have no standing to sue.
That is where the concern lies-in the precedent.
The Prop 8 thing is really really bothering me. This is a dangerous precedent that no one is talking about.
I’m unclear as to why everyone is so excited today. Only one provision of DOMA was struck down and no decision was made on Prop 8. There was no law of the land ruling on gay marriage.
Basically what happened today is married gay couples now can get federal freebies and the California Initiative Process has been neutered. But somehow my leftist friends are all aflutter now that they seem to think they are “equal.”
Oh BTW.. maybe this wouldn’t be such a big problem is BILL CLINTON hadn’t signed DOMA in the first place. He made a lot of work for you activist types.
There is plenty if recourse for the defenders if the laws. They can sue the state. In short, what the court decided today was that citizens cannot be the defendant when a law is challenged, but they can most certainly be a plaintiff.
While I do find the prop 8 ruling sets a potentially dangerous precedent, I also have to say as a CA resident, I hate the proposition process. Ballot propositions are often worded (intentionally) in ways that are confusing or misleading. It’s too easy to get one on the ballot and too much special interest crap shows up on the ballot that no one cares about. IMO, it’s democracy run amok, and needs to be done away with.
Visas are the most hurtful portion of DOMA. The pain that couples go through as they try to immigrate is so heartwrenching to watch.
I am pushing for Obama to declare immediately that the gov will allow Same Sex finances.
So why are you slapping people who try to legally immigrate in the face with your amnesty for illegal immigrants?
Oh, that’s right. Obama didn’t tell you to think; he told you to obey.
SCOTUS declares gay couples boring
Read more: http://communities.washingtontimes.com/neighborhood/tygrrrr-express/2013/jun/26/scotus-declares-gay-couples-boring/#ixzz2XO1eqqUB
Everyone wringing their hands over SCOTUS’ pronouncement on lack of standing seems to have forgotten that the Prop 8 proponents actually DID get to defend the proposition–at the original trial in Federal district court. Judge Walker found in favor of the defendants (the Prop 8 proponents lost). THEN, those same proponents appealed to the Ninth Circuit, and lost again.
I’m finding it hard to see a constitutional crisis in the making here. They had their day in court–TWICE!
I’m not arguing that this isn’t a concern. But I found several cases where the Federal Govt, the DoJ specifically, has decided not to defend a law in court, going back to at least Reagan. It doesn’t seem that it happens often, but it’s not “unprecedented. Roberts was actually the Solicitor General in one such case during the Bush 1 Presidency.
Prop 8 does not go by-by. There are nuances that will not be felt for a few days… but I will quickly explain what I understand.
In the California’s constitution, the government *HAS TO* uphold a proposition (again, by law) until the prop is said to be unconstitutional by an upper court. The Supe’s said they had no jurisdiction, and neither did the 9th circuit. The 9th vacated their position, and the ruling falls back down to the local judges ruling.
Which means — I believe — that the judges ruling is only effective for the two couples suing, or that particular district?
So what will happen?
Jerry Brown has ordered — unlawfully mind you, because prop 8 is still legal — all 58 districts to start performing SSM. All it will take is one conservative county/attorney general to say no… and the case will again rise up to the echelons of SCOTUS (which has been making some good choices as of late). Except this time it will be in the Courts Jurisdiction because you will have a defense and a prosecution on its rise, which the original case did not.
@John30013,
The court decision that was upheld (incorrectly) was that the law is unconstituitonal and that plaintiffs had no standing. Walker tried to have it both ways, and the supremes just let him.
Another day, another successful distraction for the low informationvoters.
This morning Roger L. Simon of PJ media has written an excellant article to conservatives titled “Don’t Take the Bait on Gay Marriage”. All anti-gay marriage conservatives should read it and take his advice:
http://pjmedia.com/rogerlsimon/2013/06/27/dont-take-the-bait-on-gay-marriage/2/
I of course like the results of these two decisions, but even though I find issues of “standing” to be a bit arcane to my non-lawyerly mind can understand the objection being raised here. Perhaps the solution is an amendment giving proponents of a successful initiative formal standing as representatives of the State or locality when the normal elected officials refuse to defend it in court. This would be for all initiatives in that State or locality which touches on more than just SSM or social issues. Elected officials of both parties have refused to defend laws that have been adopted through initiative or by the legislature that they object to (Jeremy Hooper gives an example of this by a Republican in Wisconsin). Sometimes we may agree with it because we like the results and sometimes we don’t. So make a process change that gives everyone a better chance to have intiatives or duly-passed laws defended in court in the absence of the executive authority. Works for me.
John,
The AG should have defended the law, or pushed to have it repealed. He should have been fired otherwise.
By definition, Prop 8 is constitutional in the state of California. [b]because it is constitution.[/b] Moonbeam and Arnie were [b]required[/b] to defend it, because of their oaths.