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Not So Fast: Prop 8 is Still California Law
breitbart.com ^ | 6/26/13 | Ken Klukowski

Posted on 06/27/2013 8:59:31 AM PDT by ColdOne

News reports that California's Prop 8 has been struck down as unconstitutional are completely false.

Proposition 8 is the amendment to the California Constitution that defines marriage as the union of one man and one woman. A federal trial judge--Vaughn Walker--held that Prop 8 violates the Fourteenth Amendment of the U.S. Constitution.

On Wednesday, the Supreme Court held that only the losing defendants in that case--the governor and attorney general of California--had standing to appeal that decision. When they refused to do so, Prop 8's official sponsors filed the appeal with the U.S. Court of Appeals for the Ninth Circuit, and pursued it all the way to the Supreme Court.

Since the official sponsors lacked standing to defend Prop 8, the Supreme Court refused to rule on the merits, and also vacated (i.e., threw out) the the Ninth Circuit's decision.

But that means Prop 8 is still the law in California. Section 3.5 of the California Constitution specifically commands:

(Excerpt) Read more at breitbart.com ...


TOPICS: Breaking News; Front Page News; Government; News/Current Events; US: California
KEYWORDS: doma; homosexualagenda; notbreakingnews; prop8; scotusdoma; scotusprop8
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1 posted on 06/27/2013 8:59:31 AM PDT by ColdOne
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To: ColdOne

The EmeMedia’s rush to mischaracterize this decision should send a shudder down the spine of every thinking American. This proves that they are firmly on the side of anarchy and lies.


2 posted on 06/27/2013 9:05:53 AM PDT by fwdude ( You cannot compromise with that which you must defeat.)
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To: ColdOne

What a tangled web they weave when first they start to adjudicate.


3 posted on 06/27/2013 9:06:17 AM PDT by ckilmer
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To: ColdOne
On Wednesday, the Supreme Court held that only the losing defendants in that case--the governor and attorney general of California--had standing to appeal that decision. When they refused to do so, Prop 8's official sponsors filed the appeal with the U.S. Court of Appeals for the Ninth Circuit, and pursued it all the way to the Supreme Court.

What the court did here was rule that malfeasance/misfeasance/nonfeasance on the part of these rulers is a-ok: that is, essentially, what they have said here.
The question is why? And it has an easy answer: Proposition 8 was [and is] completely valid as an amendment to California's Constitution — that the governor and AG are required to see that the laws are upheld and faithfully executed is, apparently, irrelevant — moreover, this ruling effectively strips people of the right to petition the federal government when a State is violating the 14th Amendment (after all, only the government has standing).

4 posted on 06/27/2013 9:09:00 AM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: ckilmer

bump


5 posted on 06/27/2013 9:09:54 AM PDT by ConservativeMan55
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To: ckilmer

Looks like the HISSY FITS won’t end for a while.


6 posted on 06/27/2013 9:10:48 AM PDT by spawn44 (moo)
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To: fwdude
The EmeMedia’s rush to mischaracterize this decision should send a shudder down the spine of every thinking American.

The really disturbing thing is the decision is all in favor of tyranny — a simple `yes` or `no` would have been infinitely better, but by rejecting standing they've effectively said that only the government can challenge laws.

7 posted on 06/27/2013 9:11:06 AM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: ColdOne

Seems to me if the SCOTUS refuses to decide on an appeal then the lower court ruling would stand. This is confusing.


8 posted on 06/27/2013 9:12:10 AM PDT by HerrBlucher (Praise to the Lord the Almighty the King of Creation)
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To: ColdOne
GayBC News was ready with a bunch of celebratory reports - complete with homosexuals cheering & waxing rhapsodic - at news of the first decision regarding DOMA.

The fact that those were gone by midday told me that the Gay Mob wasn't sure whether the other decision was good news or bad as far as they were concerned.

9 posted on 06/27/2013 9:14:31 AM PDT by skeeter
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To: OneWingedShark
Agreed. But I have heard from standard, major media outlets all day that Prop 8 was struck down as "unconstitutional" - a blatant lie. No fact checking or any apparent reading of the case decision.

If we're this lost that we just get opinions from the "news" media instead of facts, we're as good as an anarchist state.

10 posted on 06/27/2013 9:18:12 AM PDT by fwdude ( You cannot compromise with that which you must defeat.)
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To: ColdOne
Note that no California Appellate Court has ruled on this case nor has any Federal Court or the Supreme Court. To see why this is important you need to read the full article where you will find the following:

But that means Prop 8 is still the law in California. Section 3.5 of the California Constitution specifically commands:

An administrative agency ... has no power:

(a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional;

(b) To declare a statute unconstitutional;

(c) To declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations.

11 posted on 06/27/2013 9:18:19 AM PDT by InterceptPoint (If I had a tag line this is where you would find it)
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To: HerrBlucher
This is confusing.

Here's a comment following the article:

The 9th cant. They've been voided. Walker ruling is the only other one, It did not overturn Prop 8, it only issued a temporary injunction. ... , only an Appeals court can revoke a State constitutional amendment. The Supremes knew this when they issued their ruling in both cases.

So it was an appeal from Walker's temporary injunction that went to the USSC?

12 posted on 06/27/2013 9:22:13 AM PDT by Kennard
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To: ColdOne
it's just gonna be a matter of time.
13 posted on 06/27/2013 9:27:15 AM PDT by Drawn7979
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To: ColdOne
it's just gonna be a matter of time.
14 posted on 06/27/2013 9:27:16 AM PDT by Drawn7979
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To: InterceptPoint
A U.S. District Court has declared that Proposition 8 is unconstitutional under the 14th amendment of the U.S. Constitution. Any provision in the state's constitution, the state's statutes or a county's ordinance that provides that the judgment of a U.S. District Court is unenforceable is a provision that in unconstitutional under the U.S. Constitution's supremacy clause.

Banning homosexual marriage at this point will literally take an Act of God and the possibility of an Act of God should not be dismissed.

15 posted on 06/27/2013 9:30:17 AM PDT by Tau Food (Never give a sword to a man who can't dance.)
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To: Tau Food

I see what they are saying. The Calif Constitution requires an “Appelate” court to have ruled it’s unconstitutional. Otherwise the California Executive has no authority to treat it as unconstitutional. It’s insufficient under the California Consitution for a District court to rule it unconstitutional.

Therefore if California officials don’t appeal the District Court’s ruling and get an appellate court ruling, the officials will violate the California Constitution by accepting the District Court’s ruling.

It sets up an interesting conflict of authority. One I think the District Court would win.

Californians would have grounds for impeachment for failure to seek an appellate court ruling. Unfortunately That and a quarter won’t get them a cup of coffee.


16 posted on 06/27/2013 9:48:17 AM PDT by DannyTN
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To: Tau Food
So the court that made the Prop 8 ruling was a Federal Court?
17 posted on 06/27/2013 9:48:43 AM PDT by InterceptPoint (If I had a tag line this is where you would find it)
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To: ColdOne

The bottom line is Jerry Brown screwed his own citizens by refusing to defend their vote in court.


18 posted on 06/27/2013 9:54:17 AM PDT by Williams (No Obama)
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To: ColdOne

LOL- I hope this is true


19 posted on 06/27/2013 9:56:43 AM PDT by Mr. K (There are lies, damned lies, statistics, and democrat talking points.)
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To: ColdOne

Mark Levin nailed this one. They handed it back to be picked apart by the lower courts, based on their central finding that “you have to be a bigot in order to oppose gay marriage”.

Levin said this was “written by very clever law clerks” to destroy Prop 8. while keeping SCOTUS fingerprints off of that.


20 posted on 06/27/2013 9:58:27 AM PDT by Buckeye McFrog
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To: InterceptPoint
So the court that made the Prop 8 ruling was a Federal Court?

Yes.

And, here's the problem with this guy's theory. Suppose that California's governing politicians wanted to stifle conservative activists and passed a statute making it a felony for demonstrators to carry signs that espouse conservative opinions. Some conservative activist would file a lawsuit in a federal court arguing that the statute is obviously unconstitutional. And, the federal judge would agree and declare the law unconstitutional.

Now, if this author is correct, then the State of California could just decide not to appeal. Since the district court was not an appellate court, the State of California could just go on enforcing its unconstitutional statute.

But, of course, this author's theory is not correct. The State of California is bound by the decision of the U.S. District Court even though it is not an appellate court. The State of California doesn't have the power to decide which federal courts it will obey.

21 posted on 06/27/2013 9:58:38 AM PDT by Tau Food (Never give a sword to a man who can't dance.)
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To: HerrBlucher

Scotus in their opinion, specifically set aside the ruling by the Appeals court 9th.


22 posted on 06/27/2013 10:03:04 AM PDT by campaignPete R-CT (we're the Beatniks now)
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To: Buckeye McFrog; ColdOne

Mark did say it was a set up to let it be torn apart at a lower level, but I heard him say it was set up to be torn apart at the state level in all 50 states, based on the written opinion that claims only bigots are opposed to gay marriage.

I didn’t hear him say that it was set up to be torn apart at a lower level in federal courts.


23 posted on 06/27/2013 10:06:39 AM PDT by txrangerette ("...hold to the truth; speak without fear". - Glenn Beck)
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To: DannyTN

Well, the problem is that if the State of California is able to ignore the decisions of U.S. District Courts, then why should the State even show up to defend a claim that a state law is unconstitutional? Since the case will never get to a federal appellate court, the State of California could go on doing anything it wants so long as it never appeals to an appellate court.


24 posted on 06/27/2013 10:06:49 AM PDT by Tau Food (Never give a sword to a man who can't dance.)
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To: Tau Food

In other news:
“Governor Jerry Brown is already ordering clerks to issue marriage licenses to gays in California, a bold step”

The clerks have standing.


25 posted on 06/27/2013 10:09:17 AM PDT by campaignPete R-CT (we're the Beatniks now)
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To: ColdOne

They’ll ignore it. Really. That is what will happen.


26 posted on 06/27/2013 10:10:31 AM PDT by Carry_Okie (The environment is too complex and too important to be managed by central planning.)
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To: campaignPete R-CT
The clerks have standing.

Yes, the clerks have standing. But, they'll be laughed out of court based on the Supremacy Clause argument raised by Tau Food. And, to top it off, if they appeal being laughed out of court, it will be affirmed by an appellate court (which will, of course, render this entire argument moot).

Point being, this argument under Section 3.5 is not going to go anywhere.

27 posted on 06/27/2013 10:12:42 AM PDT by Conscience of a Conservative
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To: campaignPete R-CT

According to CJ Roberts, the clerks have standing if they can claim a personal, particularized injury that they will suffer by issuing marriage licenses.


28 posted on 06/27/2013 10:13:42 AM PDT by Tau Food (Never give a sword to a man who can't dance.)
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To: ColdOne

If m reading this right, the path forward for Prop 8 supporters is to sue Moonbeam to enforce the law, as proscribed in the CA constitution

Do I have that right?


29 posted on 06/27/2013 10:21:52 AM PDT by tanknetter
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To: ColdOne

Someone please ‘splain this in NON LAWYER speak.


30 posted on 06/27/2013 10:25:17 AM PDT by Vaquero (Don't pick a fight with an old guy. If he is too old to fight, he'll just kill you.)
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To: Tau Food; Conscience of a Conservative

and if a clerk refuses to issue marriage licenses .... there will be consequences ...

if they can claim a personal, particularized injury that they will suffer by NOT issuing marriage licenses.


31 posted on 06/27/2013 10:25:21 AM PDT by campaignPete R-CT (we're the Beatniks now)
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To: tanknetter
If m reading this right, the path forward for Prop 8 supporters is to sue Moonbeam to enforce the law, as proscribed in the CA constitution

Someone will probably do that, yes. But, as noted above, under the Supremacy Clause of the U.S. Constitution, Prop 8 supporters would lose on this argument, and lose badly.

32 posted on 06/27/2013 10:25:37 AM PDT by Conscience of a Conservative
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To: Tau Food

I know I don’t think California can ignore the District Court’s order.

However I do think California can hold their own officials in violation of the California constitution if they honor the District Court’s order and don’t get an appellate decision.

Maybe the proponents of Prop 8 can sue the California officials in California courts and force them to appeal it.


33 posted on 06/27/2013 10:25:38 AM PDT by DannyTN
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To: ColdOne
It's all over. The homosexuals won. It may well be a pyrrhic victory, like the return of Elian was to the Florida vote in 2000.

Here is a taste of the treats awaiting American taxpayers.

34 posted on 06/27/2013 10:30:09 AM PDT by Kennard
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To: fwdude

i really don’t think what the left is pushing for is anarchy. Rather, it would be the opposite: tyranny. there is no push for greater freedom, that is not the leftist way.


35 posted on 06/27/2013 10:31:16 AM PDT by FutureRocketMan (Santorum/Perry or Perry/Santorum 2016)
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To: DannyTN
However I do think California can hold their own officials in violation of the California constitution if they honor the District Court’s order and don’t get an appellate decision.

No they can't. Under the author's reading of the CA Constitution, the current situation is:

1. California officials may not enforce Prop 8, pursuant to the Federal Constitution (per the District Court's decision); but, 2. California officials must enforce Prop 8, pursuant to the California Constitution

California officials, therefore, face directly conflicting obligations under the California and Federal Constitutions. Under the Supremacy Clause, the answer is quite clear - where an official's obligations under a state law or Constitution conflict with the Federal Constitution, the Federal constitution wins out. You can't sue (well, you can sue, but won't win) to force a state official to take an action inconsistent with the Federal constitution.

36 posted on 06/27/2013 10:38:57 AM PDT by Conscience of a Conservative
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To: DannyTN
According to the Supreme Court's opinion:

"After a 12-day bench trial, the District Court declared Proposition 8 uncon- stitutional, permanently enjoining the California officials named as defendants from enforcing the law, and 'directing the official defendants that all persons under their control or supervision' shall not enforce it."

So, yeah, anyone can ignore or violate a court order, but they risk jail and daily fines.

I really believe it will take an Act of God to stop homosexual marriage in California.

37 posted on 06/27/2013 10:39:59 AM PDT by Tau Food (Never give a sword to a man who can't dance.)
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To: ColdOne

> “Since the official sponsors lacked standing to defend Prop 8, the Supreme Court refused to rule on the merits, and also vacated (i.e., threw out) the the Ninth Circuit’s decision.”
> “But that means Prop 8 is still the law in California.”

I am sorry to say but this is totally misleading.

The decision by the homosexual federal judge Vaughn Walker, who overturned Prop 8 on 14th Amendment grounds, still stands.

The only recourse for Californians now is for the California state AG to file suit to overturn this homosexual judge’s decision. That’s not going to happen any time soon in California.

The broader strategy is to pass a US Constitutional Marriage Amendment.

But first the public must be reminded or taught about the downside of the homosexual lifestyle just as so many pro-life people have undertaken to expose abortion mills. Behind the curtain of the homosexual lifestyle are horrors for eyes to see and ears to hear, and these horrors are prevalent among this group.


38 posted on 06/27/2013 10:43:41 AM PDT by Hostage (Be Breitbart!)
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To: Tau Food
"I really believe it will take an Act of God to stop homosexual marriage in California."

I'm a little worried about acts of God at this point.

39 posted on 06/27/2013 10:43:49 AM PDT by DannyTN
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To: ColdOne
Wow, thanks ColdOne. Hearing and have read exactly the opposite today. Even have read headline this A.M. of DOMA being struck down at yahoo, even though that is untrue. Homos have been celebrating though; so is the lame-stream up to pulling off another fast one by covering up the truth ... probably so. Each knows the lame-stream is always trying to pull a fast one, each time their mouths open or a report is written. May they all fail.
40 posted on 06/27/2013 10:45:13 AM PDT by no-to-illegals (Scrutinize our government and Secure the Blessing of Freedom and Justice)
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From what I understand this good news through Breitbart together with a $1 buck, will still only get us a cup of coffee.


41 posted on 06/27/2013 10:49:21 AM PDT by RBStealth
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To: InterceptPoint
So the court that made the Prop 8 ruling was a Federal Court?

Yes, but the fact that SCOTUS vacated the ruling of the 9th Circuit means that the ruling of the District Court applies only to the parties to the case, and only in that District. Since California has several Federal Court districts, that would seem to imply that the ruling only impacts a portion of the state.

There is also the question of whether there should be any finding of unconstitutionality at all. Since the state declined to defend the law, the most the plaintiffs should have accomplished is a default judgment on their specific claim. That is why Walker allowed the supporters of Prop. 8 to defend the law in his court - he wanted to have a trial so he could declare the whole law unconstitutional, not just grant a default judgment to the plaintiffs. But if the supporters of the law did not have standing to defend the law at the 9th Circuit, they also did not have standing at the trial court, and the whole decision by Walker should be vacated and replaced with a default judgment.

42 posted on 06/27/2013 10:50:23 AM PDT by CA Conservative (Texan by birth, Californian by circumstance)
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To: DannyTN

I know I don’t think California can ignore the District Court’s order.

LEGALLY, if I’m not mistaken, the District Court’s order is only binding within that District (which I think is the Northern District of California).


43 posted on 06/27/2013 10:56:54 AM PDT by eddiespaghetti ((with the meatball eyes))
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To: ColdOne

I’m an old college graduate with a major in History and a minor in Political Science, and I am hopelessly confused by this Court.

Remember the good old days.....when words had meanings?


44 posted on 06/27/2013 10:57:58 AM PDT by cookcounty (IRS = Internal Revenge Service.)
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To: CA Conservative
Yes, but the fact that SCOTUS vacated the ruling of the 9th Circuit means that the ruling of the District Court applies only to the parties to the case, and only in that District. Since California has several Federal Court districts, that would seem to imply that the ruling only impacts a portion of the state.

According to the Supreme Court's opinion:

"After a 12-day bench trial, the District Court declared Proposition 8 uncon- stitutional, permanently enjoining the California officials named as defendants from enforcing the law, and 'directing the official defendants that all persons under their control or supervision' shall not enforce it. Perry v. Schwarzenegger"

The judgment is binding on all of the officials named as defendants, from the Governor on down, in all parts of the state.

Only an Act of God will prevent homosexual marriage in California.

Trust God.

45 posted on 06/27/2013 10:59:14 AM PDT by Tau Food (Never give a sword to a man who can't dance.)
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To: Conscience of a Conservative

It’s called the Supremacy clause. it trumps all this. If a Federal Court has held the provision to be unconstitutional under Federal Law — the state law cannot preclude that finding.

Federal Courts determine the application of Constitutional law. It may take a state appellate court to undo that process if the challenge started in the State and was based on state law.

This is game — set — match in California.

The Liberty law fellow may be a sharp cat — but he obviously didn’t take Federal Courts while at George Mason.


46 posted on 06/27/2013 11:07:52 AM PDT by Iron Eagle
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To: DannyTN
http://abclocal.go.com/kabc/livenow?id=7367462

been watching this with renewed interest since yesterday's ruling.

"I really believe it will take an Act of God to stop homosexual marriage in California."

47 posted on 06/27/2013 11:45:55 AM PDT by pollywog ("O Thou who changest not, abide with me.".......)
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To: pollywog

http://abclocal.go.com/kabc/livenow?id=7367462


48 posted on 06/27/2013 11:46:43 AM PDT by pollywog ("O Thou who changest not, abide with me.".......)
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To: Vaquero
Someone please ‘splain this in NON LAWYER speak.

The answer is definitely maybe & maybe not.

Eloquent lawyers have declared Prop 8 still stands and other Eloquent lawyers have declared Prop 8 is invalid. So we stand firmly behind the opinions of the learned Eloquent lawyers.

49 posted on 06/27/2013 1:10:45 PM PDT by rcrngroup
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To: Tau Food

I think this means it is the legal duty of the state to appeal every decision that the 9th Circuit makes. And given that the 9th circuit is the most overturned, activist court in the country, that makes sense. Seems to me that if the state refuses to appeal they are supposed to be impeached for dereliction of duty. And that is what needs to happen.

But it doesn’t make sense that SCOTUS could vacate the 9th Circuit decision, if the proper CA authorities filed the suit and had standing.


50 posted on 06/27/2013 1:48:07 PM PDT by butterdezillion (,)
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