Why Did the Supremes Toss Prop 8?

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.