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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

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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 Praxeologue
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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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