Do Proponents of Prop 8 Have Standing? - By Ron Branson
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Do Proponents of Prop 8 Have Standing?
By Ron Branson
This question is greatly pondered in today's news. Below is an article published on a Fox News Blog delving into this issue. I have chosen to respond immediately below.
CA’s Gay Marriage Yo-YoAugust 17, 2010 - 11:01 AM | by: Claudia Cowan
Lawyers fighting for the resumption of gay marriage in California are trying to make the best of the latest legal loss, after a 3-judge panel of the 9th Circuit Court issued an emergency stay on same-sex weddings pending an appeal. They say they're gratified the higher court has recognized "the importance and pressing nature" of this case, and is moving to get the matter heard as soon as possible. The briefing schedule has been expedited, and oral arguments are set to begin the week of December 6th, which is pretty quick by legal standards. As Geoff Kors, executive director of Equality California points out, "the 9th Circuit Court normally takes up to a year and a half to decide an issue, but this one they've indicated they want done in months."
But for scores of gay and lesbian couples who hoped to be able to tie the knot as soon as tomorrow afternoon, the new stay is a big disappointment. Many are having to cancel weddings. San Francisco Mayor Gavin Newsom says he fears some couples may not outlive the final ruling, either from the Circuit Court or -possibly- the U.S. Supreme Court. Attorney General Jerry Brown is also expressing concern, saying gay couples are continuing to have their civil rights violated each day Prop. 8 remains in effect.
On the other side, proponents of Prop. 8, who lost the last round in court, are pleased to win this one. They'd argued gay marriages would be happening under "a cloud of uncertainty," and that the result could be legal chaos. The lawyers fighting on behalf of the voter-approved ban say the court acted responsibly, by preserving the status quo while the appeals move forward.
But the fact remains, the whole case could be "dead on arrival" if the appellate court rules those proponents don't have legal standing to defend the ban moving forward. Federal Judge Vaughn Walker allowed the authors of Proposition 8 to defend the law at trial, but they're not really the 'defendants' since they don't enforce the law. The state is the defendant here.
In his ruling, Judge Walker said an appeal may hinge on getting Governor Arnold Schwarzenneger or Attorney General Jerry Brown to join the defense team. The chances of that happening are slim to none, since they've both filed motions calling for same-sex marriage to resume right away.
Imperial County near San Diego is hoping to intervene as a defendant, and the 9th Circuit is considering that request. But without a county, or some state entity on board, it's possible the whole case could end on a technicality, because the proper defendants are unwilling to challenge the verdict.
Read more: http://liveshots.blogs.foxnews.com/2010/08/17/cas-gay-marriage-yo-yo/#ixzz0wsyQ0tsD
Ron Branson's Response
There is much controversy over the question of whether the Proponents of Prop 8 have standing. Federal Judges Vaughn Walker says they do not. As the founder of JAIL4Judges I wish to check in on this debate. In the U.S. Supreme Court Case of Windsor v. McVeigh, 93 U.S. 274 the Court issued a scathing rebuke of prior court determinations that the defendant in that case had no recourse within the judicial system. The Court said, "Wherever one is assailed in his person or his property, there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him or giving him an opportunity to be heard is not a judicial determination of his rights, and is not entitled to respect in any other tribunal."
It is undeniable that the People of the State of California have an interest in the tenets of Prop 8 which they passed. Pursuant to state statute, California is charged with representing the arguments in favor of the proposition. Should the State default, or chose not to defend on behalf of the People, then the fault obviously lies with the deficiency of the statute, and not with the People.
There can be no doubt that the will of the People rise above the powers of all governments, which are but the hired servants of the People. For the sake of those who doubt this premises, I cite to our unanimous Declaration of Independence passed by Congress July 4, 1776. "... governments are instituted among men, deriving their just powers from the consent of the governed..."
It is self-evident that there can be no earthly power that can be exercised by governments that are not derived by consent of the governed. If the government chooses not to represent their master, the master does not forfeit its powers, or lose its rights due to the default.
Now applying this principle to the U.S. Supreme Court's determination in Windsor as set forth above, "Wherever one is assailed in his person or his property, there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him or giving him an opportunity to be heard is not a judicial determination of his rights, and is not entitled to respect in any other tribunal." Hence, natural justice dictates that regardless of the nature of the judicial body deciding otherwise, such decision is not a determination of the rights of the People, and is not entitled to any respect in any other tribunal. This principle is true even if the U.S. Supreme Court were to decide other wise!
If the State chooses to default, then the right to defend falls directly to the People. If the People were to be denied standing, then the court making such decision is no longer a court having rendered a judicial decision.
National J.A.I.L. Commander-In-Chief