Posted on 07/06/2008 10:37:12 PM PDT by 2ndDivisionVet
About a month ago, the California Supreme Court, in a 4-3 decision, issued a declaratory opinion that Proposition 22, which states that, “Only a marriage between a man and a woman is valid and recognized in California,” enshrined into statutory law by 61.4% of California voters in 2000 (over four million voters), was “unconstitutional” on the basis that "gender discrimination" violates the equal protection clause of the state constitution.
The LA Times reported that:
"The California Supreme Court struck down the state's ban on same-sex marriage Thursday in a broadly worded decision that would invalidate virtually any law that discriminates on the basis of sexual orientation."
Sadly, many of the leading "conservative" and "Christian" pro-family organizations such as AFA, Liberty Council, ADF, FRC, ACLJ, and Focus on the Family have been in full surrender mode conceding this same liberal talking point that the court "legalized same-sex marriage in California" and that the only way to ensure preserving traditional male-female marriage is through a state constitutional amendment scheduled to be on the ballot in November.
The California Supreme Court issued a declaratory opinion that, in the view of the bare majority, banning same sex couples from marrying was unconstitutional and that the language of the initiative statute limiting marriage to one man and one woman must be stricken from the statute. Unfortunately however, the court doesn’t have the constitutional authority to re-write the marriage statute nor any other initiative statute for that matter. According to the California Constitution, only the people can revoke or amend an initiative statute such as Prop 22. Same-sex “marriage” remains, therefore, illegal.
The court said the plaintiffs were entitled to the issuance of a "writ of mandate" but issued no actual writ to state officials to perform the ministerial act of issuing marriage licenses to same-sex couples. Even if they had issued a "mandate," state officials are sworn to execute the law and not effectuate a court's opinion. Moreover, any court mandate or "order" would have been both unenforceable and invalid, since, according to a recent California Court of Appeals ruling from April of 2008, Sondermann Ring Partners v. Buenaventura, the court can declare an action of the legislature unconstitutional where such action exceeds the limits of the Constitution, but the courts have no means and no power to avoid non-action. In other words, the court is not constitutionally permitted to enforce its opinion.
Governor Schwarzenegger has fulfilled his promise to "uphold the court ruling" by authorizing changes to the marriage certificates, replacing "husband" and "wife" with "partner A" and "partner B” which is ironic considering that he vetoed a previous attempt by the legislature in 2005 to eliminate gender requirements for marriage which he argued required the assent of the electorate. He has also authorized Justices of the Peace and Town Clerks to solemnize and perform same sex marriage ceremonies which began on June 15th.
But the main question is whether or not Governor Schwarzenegger possesses the constitutional authority to do so.
The governor, according to Article 5 Section 1 of the California Constitution is solely responsible for seeing that "the law is faithfully executed."
And since all law making powers solely reside with the sovereign people of the state of California and their elected representatives, the governor is bound to only enforce the laws and statutes which have been enshrined into law via the people (in the case of a initiative statute or constitutional amendment) or their elected representatives, including Prop 22, which has not changed.
According to the California Constitution, only the voters possess the enumerated authority to amend or repeal the marriage statute limiting marriage to one man and one woman (Prop 22). As Judge Baxter wrote in his dissent:
Under article II, section 10, subdivision (c), that body cannot unilaterally repeal an initiative statute, such as Family Code section 308.5, unless the initiative measure itself so provides. Section 308.5 contains no such provision.
Nemo dat quod non habet, (You cannot give what you do not have.”) In other words, the California Supreme Court cannot give to the Legislature, what neither it, nor the legislature, has: the power to overturn the people’s initiative legislation. No branch of government, even the branch that claims to be the final arbiter of a Constitution can gain legal authority which it does not possess. To claim then the "the court legalized same sex marriage" by "striking down" the people’s initiative statute limiting marriage to one man and one woman has absolutely no constitutional basis.
Governor Schwarzenegger has violated his sworn oath to uphold the California Constitution to only enforce the current laws and statutes of the state of California by illegally authorizing changes to, and issuance of, marriage certificates to same sex couples.
Like former Massachusetts Governor Romney before him, Governor Schwarzenegger has falsely asserted that the court's opinion, containing no valid or enforceable court order, "legalized same sex marriage" and that it is his obligation to enforce the "court's decision." Romney illegally authorized the Department of Public Health to change the marriage certificates from "husband" and "wife" to "partner A" and "partner B" and ordered Town Clerks and Justices of the Peace to perform and solemnize same sex "marriages," or tender their resignation (which one did), without an accompanying statute approved by the legislature.
Schwarzenegger’s tyrannical actions are straight out of the Romney playbook.
It is no surprise that the vast majority of the leading conservative “pro-family” organizations, lawyers, and radio-pundits have been silent about Schwarzenegger’s illegal actions since virtually every one of them from Focus on the Family to Ann Coulter to Rush Limbaugh totally suppressed the truth about Mitt Romney’s virtually identical illegal actions.
Romney, not the Supreme Judicial Court of Massachusetts, was originally solely responsible for the illegal issuance of marriage licenses to same sex couples in 2004. The claim that the "activist" Goodridge Court "legalized gay marriage" is a total lie. The court didn't even pretend its declaratory opinion on the one individual case before it, could in any way influence the current marriage statute:
"Here, no one argues that striking down the marriage laws is an appropriate form of relief."
In fact, the court admitted that under the marriage statute, Chapter 207 of the Massachusetts General Laws, homosexual marriage is illegal:
"We conclude, as did the judge, that M.G.L. c. 207 may not be construed to permit same-sex couples to marry."
In California, while the court has claimed that the designation of marriage as a “union between one man and one woman” must be stricken from the statute, it is crucial to reiterate that only the sovereign people of California have the constitutional authority to amend or revoke an initiative statute such as Prop 22.
Since courts lack the authority to enforce their own opinions and cannot make law, they can only be considered “activist” when the executive branch enforces their opinion as if it were the “new law.” While a bare majority of four members of the court, no doubt issued an illegal opinion and should be impeached for doing so, Governor Schwarzenegger alone authorized the issuance of the illegally altered marriage certificates. Executive tyranny, not “judicial activism,” is what occurred in California (and Massachusetts).
The bottom line is this: Same-sex “marriage” is not legal anywhere in the United States of America from Massachusetts to California. Now if only somebody would explain this basic legal concept to our superstar “conservative” leaders, lawyers, and radio-pundits who incessantly swear that it is.
"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus
Court Did Not Have Power To Strike Down Ban On Same-Sex “Marriage” Schwarzenegger Shirked Obligation
07/05/2008 10:21:14 AM PDT · by Daniel T. Zanoza · 18 replies · 395+ views
RFFM.org ^ | July 5, 2008 | Gregg Jackson
http://www.freerepublic.com/focus/f-bloggers/2041155/posts
Ping
I have a relative this weekend run up north for the SECOND TIME to get married to her female lover. It is STILL ILLEGAL...
>> “In California, while the court has claimed that the designation of marriage as a “union between one man and one woman” must be stricken from the statute, it is crucial to reiterate that only the sovereign people of California have the constitutional authority to amend or revoke an initiative statute such as Prop 22.” <<
That’s all you need to know folks...
The people should get rid of these justices and gov. They did it once and they can do it again.
All 57 states?
That's gonna leave a mark. ;-)
My opinion and a buck will get you a cup of coffee, but, it has been my opinion for quite a while that, especially at the federal level, we no longer have three co-equal branches of government.
We won’t have until we have an Executive with the fortitude to tell congress or the SC “no” when congress or the SC is wrong.
I believe we have been taught that the Supreme Court, state or U.S) are supreme law of the land. What they say goes and so we have been getting shafted for many years by judicial activism and legislatures and governors who are derelict in performance of their duties.
From our government we get exactly what we tolerate.
Throw them out....governors....judges....law-makers. Do it now. Don’t stop till it’s done.
Good point. The courts are overstepping because the other branches are being negligent.
Why not? Our founders intended that to be the case and it certainly makes the most sense. In fact, we specifically rejected the British model to create our judiciary, separate from the legislature, that judges the meaning of the constitution.
You honestly think it is a good idea to have popularly elected politicians judging the constitutionality of laws?
Nope. The founders intended Congress to be the final authority. That's why the Constitution specifically gives Congress the authority to oversee or not oversee certain jurisdictions.
Article III, Section 2
"In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."
The Congress has, in it's "wisdom", chosen never to invoke this power, AFAIK, but it's there.
I think you should look at what Federalist 78 has to say about this topic.
That's why the Constitution specifically gives Congress the authority to oversee or not oversee certain jurisdictions.
Well, not exactly, though I understand how a superficial reading of the document might lead one to this conclusion. Let's examine Article III carefully, keeping in mind that you must read all of the provisions together. Section 1 states that "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."
So we know from Section 1 that there must be a judicial power, and it must be vested in (at the least), the Supreme Court. It MAY also be vested in inferior courts.
But what is the judicial power? That seems relevant, and fortunately it is defined by Section 2: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution . . . ."
Note here that the judicial power MUST extend to ALL cases arising under the Constitution. The plain text of the Constitution indicates that this is not an optional program. Thus, there must be at least one federal court that is empowered with the authority to hear constitutional disputes.
But what of your quoted section? Congress can certainly make regulations and exceptions--and indeed can even eliminate lower federal courts--but it cannot do so in such a manner that would remove the judicial power from the federal judiciary, because that would clearly contravene the plain text of Section 2 that requires the judicial power to be vested in a Supreme Court and in lower federal courts, should Congress choose to establish them.
Take a look at Justice Story's opinion in Martin v. Hunter's Lessee for a more thorough look at this issue.
Disagree--"judicial power" is not the same thing as "judicial jurisdiction". The Congress can exclude certain areas from jurisdiction of the Court.
"I think you should look at what Federalist 78 has to say about this topic."
I could give a damn what the "Federalist papers" have to say. The "Federalists" simply got it wrong, and our situation today proves that. Instead, I suggest you read the "Antifederalist papers" for an eerily accurate prediction of exactly what would happen (and DID happen) as a result of the "Federalist" courts.
Yawn.
If the Supreme Court doesn’t have appellate jurisdiction, some lower court gets the final say instead.
Again, excluding something from the appellate jurisdiction of the Supreme Court simply means that some lower court gets the final say on the subject.
“with such exceptions, and under such regulations as the Congress shall make”
This would say that all Congress has to do is pass legislation stating that the courts don’t have jurisdiction in the area regarding X topic, and any court ruling therefore would be null and void?
I’m thinking Gitmo and foreign illegal combatant habeus corpus. We need to get the Congress turned over and get some leaders with guts in there.
The Court meaning the Supreme Court? Yes. From the federal judiciary? No. As I demonstrated above, the judicial power means all constitutional disputes. If you foreclose the federal judiciary's "jurisdiction" to hear a particular type of constitutional dispute (say, gay marriage), then you have taken part of the judicial power away from the judiciary. That violates Sections 1 and 2, which clearly state that the power shall be vested and extend to all cases.
I could give a damn what the "Federalist papers" have to say.
Regardless of your opinion on this subject, the Federalist Papers are considered to be the authorative documents on the Founders' intent for the meaning of the Constitution, and, as I noted, the Founders intended the Supreme Court to have the final say on the meaning of the Constitution. The anti-federalist papers represent the losing side. But, if you'd prefer, you can read Madison's Notes of Debates in the Federal Convention, which say much the same thing as Federalist 78.
We need a REVOLUTION, at the ballot box!!!
I've read all that, and you might even be right---but HISTORY and events have proven that the Federalists were simply wrong, and the anti-Federalists were right. The tendency of the central government to continue to accrue power to itself was not sufficiently abated. The Constitution is essentially a dead issue, with both Congress and the Courts ignoring the plain meaning thereof. We no longer have a Republic---we have essentially a "parliamentary" government---where anything the "parliament" decides should be "the law of the land" IS, with the Supremem Court basically functioning as the "House of Lords" of the parliament.
My family emigrated to Massachusetts in 1630, fought in the revolution, signed the Declaration of Independence, provided governors of a post-Revolution state, and a cabinet member in Washington's cabinet. I am completely disgusted with what has become of what they fought for. Fortunately, I don't have many years left, and have no children to suffer under the coming "national socialist" tyranny.
Sadly, many of the leading "conservative" and "Christian" pro-family organizations such as AFA, Liberty Council, ADF, FRC, ACLJ, and Focus on the Family have been in full surrender mode conceding this same liberal talking point that the court "legalized same-sex marriage in California" and that the only way to ensure preserving traditional male-female marriage is through a state constitutional amendment scheduled to be on the ballot in November.
Yep, the entire legal community of conservatives are all a bunch of blithering idiots, along with the rest of the world except a few people who somehow are the only ones who understand the truth.
And somehow, this blithering idiocy has prevented any single person from suing in Mass., or now in California, or in federal court, to enforce the law as these few people say it must be.
Meanwhile, in the real world, a constitution is the highest law of the land, and nobody, not even a majority of people voting democratically, can enact a law that violates the constitution.
Our argument is that the court was WRONG about what is in the constitution. The false argument is that a legislature can pass a law that is unconstitutional, and there's nothing the courts can do about it.
Because if a simple majority could overturn the constitution, there'd be no point in a constitution.
As my anecdotal refutation, I offer the DC Gun Ban. A majority of people in DC clearly support the gun ban. The legislature clearly supported it, and voted it into law. It's been the law for decades, and the Congress has not seen fit to use THEIR powers to overturn it.
So, by the argument Greg makes here, and the argument made against Romney in Mass., the Supreme court cannot re-write the DC law. They can bluster about it being unconstitutional, but nobody should be allowed to buy a gun today, because DC has not changed it's law.
Funny, I don't see Greg making that argument, nor do I see any of the MassResistance folks using their misguided "legal" arguments to fight the Supreme Court finding which legalized gun ownership.
Actually, the founders DID provide a way for the legislature to fix bad rulings by the court. The legislature could impeach the judges, and appoint new judges who have a better understanding of the law and constitution. Then the case could be re-introduced, and the right decision could be made.
The executive branch has no real right to ignore the legislature, the courts have no right to ignore the laws passed, and the executive has no real right to ignore the interpretation of the law as defined by the courts.
You are correct in a sense. The legislature doesn’t have an absolute final authority, but the legislature IS the branch that is supposed to excersize “checks and balances” against the courts.
They can do so by ruling certain areas off limits to the courts (subject to the court deciding that they did so unconstitutionally). They can also impeach any judge they want.
The fact that we elect legislators who refuse to do their job is OUR fault, but it doesn’t mean we should find some extra-constitional way to solve our problem.
Maybe so, but how is that any different from your system in which you advocate that Congress should be the judge of its own laws? I'm not sure what that gets us, other than having those people elected, which I certainly don't feel is a particularly stellar system.
Well, that is the argument being put forth here, and that was put forth against Romney -- that the constitution is dead, and that anything the "parlaiment" decides should be the law of the land, regardless of what the Constitution says (through the courts tasked with judging what the constitution says).
The judges on the courts are not appointed by some ethereal process, they are not born into it, they do not win some lottery, or take the bench by force.
The judges are appointed by the executive branch, and only with the consent of the legislative branch. If the judges do wrong, it's because we picked the wrong judges, and those judges were picked by the representatives of the people, acting in the two other branches of government.
Jackson, author of "Conservative Comebacks to Liberal Lies" and a talk show host on WRKO in Boston, said Romney is the most liberal of all the presidential candidates, including Democrats Hillary Clinton and Barack Obama.
Seems he is less worried about Obama than Romney. Classic RDS. He is Fiddling while the conservative base burns.
He also has tried to criticize Mitt on his fiscal conservatism. At least he believes in tilting at windmills. No one can beat Romney on the economy. Only a RDS'er could be blind to that. He also has ties to Mass Resistance and believes their lies. Mass Resistances' founder has demonstrated with Fred Phelps.
Besides he is mischaracterizing Romney's fight for traditional marraige in Mass. He fought to get it on the ballot where the citizens had the final say. When he was Governor the measure passed to get on the ballot. Since he left the legislature and courts have been up to their usual shenannigans. Romney was the sole branch of the three fighting for conservatives and traditional marraige at the time.
______________________________
When the Massachusetts Supreme Judicial Court ruling in the case of Goodridge v. Department of Public Health legalized same-sex marriage in Massachusetts, Gov. Romney identified and enforced a little-known 1913 state law that forbids nonresidents from marrying in Massachusetts if their marriage would not be recognized in their home state. This prevented gay couples living outside Massachusetts from flocking to MA to be married and then returning to their home states to demand the marriages be recognized, thus opening the door for nationwide same-sex marriage. Implementation of the 1913 law was contested in court by same-sex couples from outside MA, but the Massachusetts Supreme Judicial Court ruled in March, 2006 to uphold the application of the law. (Jay Lindsay, "Mass. high court says nonresident gays cannot marry in state," The Associated Press, 3/30/2006)
Gov. Romney provided active support for a citizen petition drive in 2005 that collected 170,000 signatures for a state constitutional amendment protecting marriage, breaking a 20-year-old record for the most certified signatures ever gathered in support of a proposed ballot question. He rallied citizens to place pressure on the Legislature for failing, through repeated delays, to fulfill their constitutional obligation to vote on placing the marriage amendment on the ballot. Gov. Romney filed suit in the Massachusetts Supreme Judicial Court (SJC) asking the court to clarify the legislators’ duty to vote on the issue of the amendment, or place the amendment on the ballot if the Legislature failed to act. The SJC declared that legislators had a constitutional duty to vote on the petition in a ruling handed down on Dec. 27, 2006. The suit was successful in pressuring the Legislature to vote on the issue of the amendment. A vote was taken on January 2, 2007 and the measure passed. Through Governor Romney’s considerable efforts and leadership, a state constitutional amendment defining marriage to be between one man and one woman passed a critical hurdle to get it placed on the 2008 ballot where voters in Massachusetts would have the power to restore traditional marriage in their state.
Update: Democrat Governor Deval Patrick, a proponent of gay marriage, lobbied Massachusetts lawmakers to kill the proposed constitutional amendment. In a vote of the MA Legislature on June 14, 2007 the amendment received 45 votes, failing to get the required 50 votes necessary to place the amendment on the 2008 ballot. The measure needed 50 votes in two consecutive legislative sessions to advance to the ballot, and it had passed with 62 votes at the end of the last session in January. Commenting on the latest vote, former Gov. Mitt Romney said, "Today's vote by the State Legislature is a regrettable setback in our efforts to defend traditional marriage. Unfortunately, our elected representatives decided that the voice of the people did not need to be heard in this debate. It is now even more important that we pass a Constitutional amendment protecting traditional marriage. Marriage is an institution that goes to the heart of our society, and our leaders can no longer abdicate their responsibility." (Steve LeBlanc, "No Gay Marriage Vote for Massachusetts," The Associated Press, 6/14/2007)
I agree, however, what's the Attorney General's excuse?
Actually I know of one case in which Congress specifically assigned special Federal jurisdiction for a case, which the Federal courts had previously refused. 3 years ago with Terry Schivo's case...and after that, the Federal court simply refused it again, claiming in essence Congress didn't have the power to give it jurisdiction. Then of course her husband made her die of dehydration. We don't live in a constitutional Republic anymore, we live in a judicial/congressional oligarchy. It is high time Americans realized that. After all, I'd wager at least 75% of federal spending is patently unconstitutional...but it goes on, and we pretend we are still free.
If you will read the Constitution, there is nothing there about the power of the federal judiciary for judicial review—meaning having the final say on the constitutionality of laws. The Founders most certainly did not set things up that way...they anticipated a separation of powers, with Congress ultimately having the ultimate power, but, being reigned in by both the Executive branch and the Judicial.
The whole idea that we wait with bated breath for June, so the Gang of 9 can tell us what our laws (is the 2nd Amendment still in force? 1 vote, ONE VOTE, said it is...) are is ridiculous, and completely against real “rule of law,” besides being completely undemocratic.
Marbury v. Madison in the early 1800s—a minor dispute actually, is the case where the Supreme Court first asserted the power of judicial review.
This was not automatically accepted by either Congress or the Presidency for many years. Andrew Jackson famously said, for example, “The Supreme Court has made their decision, let them enforce it.”
The Dred Scott decision....demanding that non-Slave states recognize slaves as property, is probably the first prime example of judicial activism—the court making, not interpreting law—according to Robert Bork. Later, Abraham Lincoln too routinely ignored the pro-Southern Supreme Court in decisions he thought were foolish. It really is only in the post-Civil war period and mainly only in the 20th Century that the Supremes have been treated as if they were 9 gods on high, who alone could tell us peons what the soooooooo very complex Constitution really says...
Not in their wildest dreams did Madison, Jefferson, Franklin, Washington, et al. think that major laws and policies (cf. Roe v. Wade, or say Title IX) would be made (or unmade) by unelected judges. Honestly, this is not the free Republic of our Constitution.
Actually, since the original posting, I've done some homework, and the Wikipedia article on "jurisdictional limitation" gives several instances where Congress HAS used its power to limit the Federal Courts.
I can’t disagree with any of this. “Marbury vs. Madison” was a huge usurpation of power by the judicial branch.
Of course the Schivo case was one of jurisdictional expansion, and that only into a particular case, not restriction. However I was shocked by the cavalier attitude of the federal court which in essence told Congress to shove it.
I think a big part of the problem is the whole legal profession. Since 90% of legislators are lawyers, they get used to thinking of the courts as supreme...(as lawyers must) which of course judges are happy to encourage. Legislators benefit too in getting re-elected if they can push hard and important (and hence controversial) decisions in others’ hands, namely the courts... as serious controversy is anathema to re-election.
Then that lawyerly attitude has come to pervade our whole government, and now our society, that courts are supreme, and cannot be questioned. That is rule of man, not law, as judges—no matter what they or the legal world thinks—are not the law.
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