Why Did the Supremes Toss Prop 8?

California AG Kamala Harris

If you don’t show up in court, you lose the case. 

It sounds unfair, and it certainly is arbitrary, but that’s usually the way the old cookie crumbles in American jurisprudence.

That, in a nutshell, is why the Supreme Court tossed the Proposition 8 case this morning. One side didn’t show up. Ironically, the “side” of the argument that didn’t show up was the one that is actually legally bound to be there. 

The people of California didn’t get their day in court because their duly elected attorney general decided not to do her job. It really is as simple as that. 

Part of the job of a state attorney general is to represent “the people” in court actions. What that means is that the AG has the responsibility to defend the laws of the state as they are promulgated either by a direct vote of the people in a referendum or by the people’s duly elected representatives in a legislative body. 

The attorney general does not write or pass laws. Their job — let me repeat that — their job is to enforce the laws as they are passed and to defend them in court challenges. When a prosecutor at any level decides not to enforce a law because they disagree with it, that’s dereliction of duty. When they only enforce a law part of the time, that’s selective prosecution. When the chief law enforcement officer of a state refuses to go to court to defend laws that were legally passed either in a legal election or by legislative process simply because they don’t agree with the law, that should be an impeachable offense. 

The reason the Supreme Court ruled that the proponents of Proposition 8 did not have standing in the case was that they were not the duly elected chief legal officer of the State of California. They had no “standing” to speak for the people of California. The person who does have this standing, Attorney General Kamala Harris, and who is the duly elected chief legal officer of the State of California, sat the whole thing out. In fact, she was flying the rainbow flag on her web site. 

It’s up to the people of California what they want to do about this. They were the ones who passed Proposition 8. It’s their vote that has been nullified by the inaction of their own Attorney General. If they’re happy with an AG who overrules them and refuses to do her job just because she doesn’t agree with them, so be it. 

But the next time they go to the polls to vote they might ask themselves what it matters, if the vote of the whole populace of the state can be overturned by one official who simply decides not to do her job. 

For more information on this, check out Why I am Catholic by Frank Weathers. 

  • Fabio Paolo Barbieri

    Oh yes. And the job of the judges is to interpret and serve the Constitution. Which they do with similar devotion.

  • Rebecca Fuentes

    Hopefully, they will remember it next time she’s up for election.

    • Damien S.

      Latest poll I’ve seen puts support for gay marriage at 61% in California.

      • TheodoreSeeber

        Looks like Archbishops Cordileone and Gomez have their work cut out for them then. A lot of damage was done by their predecessors. Though, to be charitable, it’s not like Californicators have ever had a reputation for being moral.

      • kat_xk8

        And all Californians were polled ? No they were not

        • Damien S.

          …what does that have to do with it? A random sample poll doesn’t need to poll the whole population to be accurate.

    • Namakaokona

      Sorry to be late to the discussion, but let me point out what may be some uncomfortable facts. The California Supreme Court upheld the right of both the governor and the AG NOT to defend a law they found to be unconstitutional. That would have been Governor Arnold Schwarzenegger and AG Jerry Brown. Later, Jerry Brown RAN on a platform of NOT defending Prop 8 and was elected. Kamala Harris also ran on a platform of NOT defending Prop 8 and won. The people did speak, and currently are overwhelmingly supportive of equal protection under the law for homosexual citizens. Sorry to disappoint those who do not. Perhaps you can hire a lawyer to keep you up to date–I hear those who defended Prop 8 are looking for work.

  • http://ashesfromburntroses.blogspot.com/ Manny

    50,000 children to gay parents in California? I find that impossible to believe.

  • Bill S

    It is at the discretion of the Attorney General to decide which cases are worth litigating and which are not. Granted, if the voters are the ones who approved Proposition 8, then she should have taken that into account. But politicians often go against the wishes of the people who put them in office. I am sure you did when you switched from pro-choice to pro-life after many pro-choice people voted for you. You were fortunate enough to pick up voters to make up for the ones you lost. I imagine she is in the same position.

    • hamiltonr

      That’s not a legitimate analogy Bill. Voting pro choice or pro life is not how my job is defined. I am free as part of my legal power as a duly elected member of the House of Representatives to vote however I chose on any issue that is put before the House. I do not have to give an explanation — in fact, I am legally protected from anyone having the power to demand an explanation — for any vote I cast.

      That I chose to give explanations is my choice.

      The AG’s job is to be the voice of the people in defending their laws. She or he does not get to write or pass laws (except when voting as an ordinary citizen in referendums) but they are required to provide defense of the people’s laws when they are attacked through the courts.

      The one thing you said that is accurate is that if the voters of California want to let her get away with this, that is their call.

      • Bill S

        Thank you for that explanation.

  • Dave

    I’d go farther than that. If an entity refuses to defend its own laws, especially when it is the result of a popular initiative or referendum, then any member of the class that voted for it should gain standing. Otherwise, the whole idea of popular initiatives is a sham, as the executive branch essentially has veto power over them.

    As I said, this is perhaps more troubling than the immediate ruling itself.

  • TheodoreSeeber

    Reminds me of back in college when I was on the other side of this issue. The city council, which had been taken over by the radical Oregon Christian Coalition (that later became slightly more honest and turned into the Oregon Taxpayers United, as their real focus was on not spending money, the moral stuff was just a cover) passed an ordinance forbidding city money funding any advance of the homosexual agenda. Which the DA promptly turned into a free-for-all on assaults as long as they could be considered hate crimes against gays- refused to prosecute any assault as long as the victim was accused of being gay.

    I ended up with a broken elbow over that.

  • kat_xk8

    Utter shame on ms. Harris got not doing her job but rather the will of the devil and yes I said that

  • M. Solange O’Brien

    It actually doesn’t matter; the court could have appointed a defender for the case. The real problem with standing here is that no one actually damaged by the law appeared as a plaintiff.

  • Roki

    Fr. Robert J. Araujo, SJ, who also is a lawyer, notes that the SCOTUS majority’s reasoning behind rejecting the standing of the Proposition 8 proponents does not make much sense, and effectively undercuts the entire initiative process, thereby disenfranchising anyone not holding political office.

    http://mirrorofjustice.blogs.com/mirrorofjustice/2013/06/navigating-the-thicket-of-hollingsworth-v-perry.html

    Seems a problematic ruling at best.


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