Friday, August 13, 2010

Prop 8 closure - paging SCOTUS!

I guess we're just going to have to agree-to-disagree on this one.

First, the presentation of the case was completely bungled. For purely political reasons, the state AG refused to defend his own state's legal defined constitution - and that's his JOB for heaven's sake! And that's only part of the problem with how this case was mismanaged from all sides. It's a mess, to be sure. And to allow a poorly managed presentation in a lower federal court to be used as justification for overturning a state constitutional amendment is dangerous (no, it's not that same as overturning a state law).

Second, it is the function of the court to protect the legally defined rights of individuals. THAT aspect of this case, for those who disagree with the amendment as written, is CORRECT. If an injured party believes its rights or legal protections are in danger, they have the right (and obligation) to ask the courts to address their complaint. I have no qualm with that position. But you need to go to the proper venue.

Short form: I think constitutional questions need to be handled at higher levels than was done in this case. I believe its the responsibility of the SCOTUS to properly rule on *all* conflicts between a State Constitution and the U.S. Constitution. That's where such issues will end up anyway. SCOTUS refusing to hear the case means the amendment stands as is. Simply, lower courts should have the Good Sense to stay away from issues of conflict between State Amendments and the U. S. Constitution. That doesn't mean it has happened that way in the past, but that was the idea in the beginning.

Now, if this was the case of a state LAW conflicting with the U.S. Constitution... a different matter. Precedence of existing rulings on constitution grounds have their place. But there has been no constitutional ruling on gay marriage, *other* than the California Amendment to its own state constitution to prohibit it. Q: How can a state constitutional amendment be "unconstitutional"? A: Only if it is in *direct* conflict with the U.S. Constitution. Why are we wasting time in lower courts? (because one side sees an advantage, and that is wrong, too).

The correct venue for such a ruling belongs to SCOTUS, not a U.S. District court, and definitely not a lower federal court. If a law should be set aside (enjoined, suspended, stayed, etc.) it makes sense to go through the process of dong that in the fastest method. But a constitutional issue? You *know* it's going to go up the line, regardless of the ruling at lower levels - it only makes sense to go where the ruling belongs.

This issue needs to be addressed by SCOTUS. Regardless of the ruling there, one side (or the other) will be dissatisfied. *BUT* there are procedures which may be followed (by the citizenry) to overturn the ruling of SCOTUS. This is Consent of the Governed in action. The purpose of the 13th and 14th amendments were in response to slavery and have (through SCOTUS rulings) been applied in other areas as well. Those are the rules; that's how our system is supposed to work.

If there is a need to implement a national policy on gay marriage, then go through the LEGISLATIVE process to do it. If you can't do it legislatively, DO NOT try to circumvent the rules by using the judiciary to get your way. The ERA Amendment (whether a good idea or bad) failed, its saving grace is that they tried to follow the rules: gay marriage is no different from the ERA, abortion, flag burning, and other so-called 'moral' issues. IMHO, right now - just like all other issues affecting marriage - the legal control is in the hands of the states.

But, as I said, we're just going to have to agree-to-disagree on this one. Nice posts on both sides.

- Steve

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