However the Ruling Allows Defendants to File For A Stay with a Higher Court –
Initially, proponents of same-sex marriage rejoiced on Thursday as Judge Vaughn Walker announced that he would lift his stay on August 18 and declined to issue a permanent stay from the ruling from last week that overturned Proposition 8’s ban on same-sex marriages. However, those feelings were relatively short-lived as reality sunk in.
Judge Walker offered a cautious approach which will allow defendants and supports of the ban to appeal to the 9th Circuit to stay the ruling. If that fails, they could go to the US Supreme Court to obtain a permanent stay of the ruling while the case is pending appeal.
The Speaker continued, “Hopefully, beginning next week, lesbians and gay men across California will be able to sanctify their love and commitment in the eyes of the law, and for the first time in almost two years the pain of feeling like second-class citizens will be gone— and I firmly believe that our victory under Judge Walker will mark a turning point when that pain begins to recede permanently, not just for Californians, but for LGBT people all across this country.”
“I am pleased with today’s decision that once again allows all loving same-sex couples to make lifelong commitments to one another through marriage,” said Senator Mark Leno also openly-gay. “Many couples and their families have long been denied the respect and validation that comes with marriage, despite any logical reason to treat same-sex couples differently than opposite-sex couples. I am elated that I will again have the opportunity to perform ceremonies for caring and devoted couples who want nothing more than to honor their love in a universally understood way – through marriage.”
“This is a long-awaited and hard-fought victory in the larger civil rights movement for marriage equality, but it is not the last. The promise of our treasured democracy, liberty and justice for all, has been fulfilled today. Let the summer of love begin,” the Senator continued.
Freddie Oakley told the Vanguard on Wednesday prior to the ruling that she is ready to go if she gets the go-ahead. The soonest that could come now would be August 18, next Wednesday. At this point though, it is difficult to know whether a permanent stay would be issued by either the 9th Circuit or the US Supreme Court.
“If we’re permitted to conduct weddings then I’ll do them just as soon as people ask me to do them. And it will be a pleasure,” said the County Clerk on Wednesday.
“We’re very fortunate that the attorney in the county counsel’s office has the same view about this kind of stuff that I do. So she’s been really on the ball checking with the Judicial Counsel and all of those kinds of people about what the situation is,” she continued.
Freddie Oakley said Wednesday that last week’s ruling did not surprise her, but the strength and clarity of it did. Because of the way the trial had gone, I wasn’t terribly surprised at the verdict,” she said.
“What I was surprised by were elements of the decision,” Ms. Oakley continued. “He was very careful to craft a decision that was really comprehensive and addresses the major issues in a very thoughtful and firm kind of way. He did not leave any wiggle room in his decision for alternate points of view.”
“For instance, he didn’t say ‘well though there’s a colorable interest in traditional marriage values, blah blah blah, still I find that…'” she explained. “What he said was, there’s no state interest in limiting marriages. I really appreciate that. He didn’t try to cover his own backside in any way.”
“He obviously stepped up and decided whatever flak he has to take, as a public servant, for his decision, he’s willing to take it in order to make it as strong and clear a decision as he could, and I really appreciate that,” she concluded.
An editorial in the San Francisco Chronicle this morning, while noting the understandable disappointment by the gay-lesbian community of the delay until Wednesday, points out that this will be, of necessity, a long drawn-out process.
“The action keeps the nation on track toward a historic and just goal: putting same-sex unions on equal footing with conventional marriages. Walker’s original decision last week begins a journey to full rights for gays and lesbians who want to marry,” the San Francisco Chronicle editorial said on Friday morning. “At the same time, the judge’s action is responsible and cautious. It doesn’t immediately authorize marriages that could be put in jeopardy by a future ruling restoring Prop. 8, the 2008 ballot measure that blocked same-sex marriage. The waiting period until Wednesday gives these opponents an opportunity to appeal.”
They continued, “No one believed that Walker’s judgment would be the final word on a divisive subject. The final stop could well be the Supreme Court, after rulings and appeals pile up on an epic issue. The process could take another year.”
“It was a courageous decision but one that won’t take effect without more judicial review,” they wrote. “By postponing official marriages until next Wednesday, Walker is both backing up his beliefs and allowing the legal process to play out. It’s a sensible and fair-minded result for now.”
While the Chronicle may be right about the course of action and the ultimate path, for those most immediately affected by the decision, the wait must be excruciating.
—David M. Greenwald reporting
CA Attorney General Brown’s decision to not argue in favor of a California law that was found to be legal and constitutional by our Supreme Court boggles the mind. I would have thought that he is duty-bound to defend CA law/constitutional amendment. It makes no difference what his personal views are on the constitutionality of Prop 8, one would think that he has a duty, as CA Attorney General,to the people of CA to defend,to the best of his ability, its laws(at the very least, to represent CA before Judge Walker with however “weak” an argument he decides to bring to the court). When he was governor, he was personally against Prop 13 and the institution of the death penalty in CA but then clearly stated he was duty-bound,as Governor, to carry out CA law. Candidate-for-Governor Jerry Brown appears to have “changed his tune” here. Because of Jerry Brown’s decision not to represent CA law here, Judge Walker decided to allow the citizen-group proponents of Prop 8 to appear before him in spite of the fact that their legal standing in this matter before his court was extremely flimsy if not non-existent. The 9th District may and, IMO, the US Supreme Court will certainly not accept Judge Walker’s decision to give the appellants standing to argue this case before them. Unless I hear a sound legal argument why our Attorney General was not duty-bound to represent CA law in this case, my support for his candidacy for Governor will have been significantly eroded.
[quote]I would have thought that he is duty-bound to defend CA law/constitutional amendment. [/quote]
What happens if he believes that the constitution of California as passed by the voters is unconstitutional under the US Constitution? Moreover, do you really want someone arguing for something they don’t believe? They don’t tend to make the best advocates for the position.
Along the same line
“They continued, “No one believed that Walker’s judgment would be the final word on a divisive subject. The final stop could well be the Supreme Court, after rulings and appeals pile up on an epic issue. The process could take another year.””
I saw an interview with a constitutional attorney and this was her take –
Proposition 8 is a State (California) initiative and has been found to be unconstitutional. The Appeals courts (both the 9th Circuit and the Supreme Court) may deny hearing the case since the appeal would not be backed by the State of California. Both the Governor and the AG have denied support of the proponents position and in fact support the Honorable Judge Walker’s decision. Without Government support, the appeals will be hung out to dry (so to speak).
That scenario would allow Walker’s decision to stand in California, but would not extend marriage right into any other states.
My advice, now is a good time to invest in the business of marriage.
“Show me the law that says it, I looked for one awhile ago and never found it.”
…perhaps you didn’t find it because it is so clearly the case. While never attending the swearing-in of a CA Attorney-General, I would imagine that he/she raises their right hand, while placing the other on a bible(option?) and SWEARS to defend the constitution and laws of CA.
Alphonso… your analysis jives with what I have heard. Still, while Governor Schwartzenagger’ decision,to ignore the will of the CA voter here, fits perfectly with the wish for and admiration, that he expressed in an interview, for political leaders who have autocratic power(as he described admiring Hitler’s autocratic power,not necessarily what he did with it, when he first ran for Governor). Jerry Brown’s position, for those of us who were his supporters back in the populism of the 60s-70s, does raise the serious question ….who IS the Jerry Brown now running again for Governor?
davisite2
I agree with you point about the AG responsibility even though I agree with his position on this matter.
davisite2: “Jerry Brown’s position, for those of us who were his supporters back in the populism of the 60s-70s, does raise the serious question ….who IS the Jerry Brown now running again for Governor?”
The Jerry Brown that will say or do anything to get elected – not out of character and principle, but out of self-interest. But then you could say that of an awful lot of politicians…
My advice, now is a good time to invest in the business of marriage.
Maybe a growth industry that will pull us out of this recession?
“My advice, now is a good time to invest in the business of marriage. “
au contraire
if gay marriage is allowed there will be a boom for Wedding photographers and the whole wedding industry
“As a practical matter, what happens if he believes that the constitution of California as passed by the voters is unconstitutional under the US Constitution? Moreover, do you really want someone arguing for something they don’t believe? They don’t tend to make the best advocates for the position.”
It doesn’t matter at all what he personally believes. As the elected Attorney General of CA, he is sworn to defend our CA constitution,period.
If he finds himself unable to do so, he is obliged to resign his office.
As any citizen knows the United States Constitution is a higher authority than any given state constitution including California’s. Should a portion of any state constitution be found to be in violation of the US Constitution by the federal courts it becomes null and void.
Chief U.S. District Court Judge Vaughn Walker has ruled that Proposition 8 which became a part of the California Constitution due to the election of November 2008 is unconstitutional per the United States Constitution.
Jerry Brown as Attorney General and all other office holders in the State of California must uphold and adhere to the United States Constitution first and foremost as they are sworn to do.
Section 3 of article XX of the California Constitution provides:
[quote]“Members of the Legislature, and all public officers and employees, executive, legislative, and judicial, except such inferior officers and employees as may be by law exempted, shall, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation:
“‘I,_________________________, do solemnly swear (or affirm) that
I will support and defend the Constitution of the United States and the
Constitution of the State of California against all enemies, foreign and
domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.”[/quote]
California Attorney General Brown who believes as Federal District Court Judge Walker does is therefore duty bound to oppose Proposition 8 because he also believes it is in conflict with and violates the US Constitution. This should come as no surprise to the voters of California as Jerry Brown as our Attorney General opposed and campaigned against Proposition 8 during the 2008 election because he believed then, as he does now, it is indeed unconstitutional per the United States Constitution and he has consistently stated so publicly. Jerry Brown is upholding his oath of office by upholding the United States Constitution first and the State of California Constitution second.
“Jerry Brown is upholding his oath of office by upholding the United States Constitution first and the State of California Constitution second.”
Firstly, it matters not one whit whether Attorney-General Brown “believes” that Prop 8 was unconstitutional under the US Constitution when he refused to defend the CA constitution. Before Judge Vaughn’s ruling, I believe that there was no Federal decision,binding in CA, that made the CA constitutional amendment ,defining marriage as between a man and a woman , to be a violation of the US constitution.
AG Brown cannot use as a reason for refusing to defend the CA constitution, declared unanimously by the CA Supreme Court to be constitutional under CA law,his personal belief that Prop 8 violates the US constitution when in fact that was yet to be decided by the Federal Court.
[quote]davisite2
08/14/10 – 03:38 PM
…
“Jerry Brown is upholding his oath of office by upholding the United States Constitution first and the State of California Constitution second.”
Firstly, it matters not one whit whether Attorney-General Brown “believes” that Prop 8 was unconstitutional under the US Constitution when he refused to defend the CA constitution. Before Judge Vaughn’s ruling, I believe that there was no Federal decision,binding in CA, that made the CA constitutional amendment ,defining marriage as between a man and a woman , to be a violation of the US constitution.
AG Brown cannot use as a reason for refusing to defend the CA constitution, declared unanimously by the CA Supreme Court to be constitutional under CA law,his personal belief that Prop 8 violates the US constitution when in fact that was yet to be decided by the Federal Court.[/quote]
It certain does matter that Attorney General Brown believes that the California constitutional amendment, Proposition 8, is in fact unconstitutional when scrutinized against the protections afforded by the United States Constitution to all American citizens. AG Brown believes an inequality denying people equal protections and rights exists under this law therefore he has a duty to use his office to remedy that problem, as he is sworn to do. He is after all sworn to uphold the US Constitution first and foremost. In other words he believes that due to the passage of Proposition 8 the State of California Constitution which is subservient to the US Constitution violates the rights of our citizens.
AG Brown is entitled to his view and again considering his oath of office sworn to firstly “support and defend the Constitution of the United States …and bear true faith and allegiance to the Constitution of the United States” overshadows his duty to the Constitution of the State of California, the lesser of the two constitutions. AG Brown is not obligated to defend any state laws or portion of the California Constitution which is inherently flawed and violates the US Constitution. Again by taking his oath of office, he has a duty to make sure the laws of the State of California neither violate the California Constitution and more importantly the United States Constitution.
The current ruling by Judge Walker certainly is not the first ruling by a Federal Judge that overrules a state supreme court decision on US Constitutional grounds. In this case Attorney General Brown agrees with the Federal District Court and we will see if this ruling is upheld at the Federal appellate level.
[quote][/quote]
“AG Brown is not obligated to defend any state laws or portion of the California Constitution which is inherently flawed and violates the US Constitution”
Bill…I’m afraid that you are missing the point, here. AG Brown,of course, is not obligated to defend a state law that violates the US Constitution but whether there is a violation is the Federal Court’s decision, not his to make as CA Attorney-General. The Federal Court had not rendered any decision on US constitutional violations when AG Brown refused to appear on CA’s behalf,his sworn duty as our Attorney-General.
Bill….I guess that you are saying that the CA Attorney-General has the power to decide which CA laws are in violation of the US constitution and to act,as our Attorney-General, according to his personal “beliefs”.
[quote]davisite2
08/14/10 – 06:13 PM
…
“AG Brown is not obligated to defend any state laws or portion of the California Constitution which is inherently flawed and violates the US Constitution”
Bill…I’m afraid that you are missing the point, here. AG Brown,of course, is not obligated to defend a state law that violates the US Constitution but whether there is a violation is the Federal Court’s decision, not his to make as CA Attorney-General. The Federal Court had not rendered any decision on US constitutional violations when AG Brown refused to appear on CA’s behalf,his sworn duty as our Attorney-General.[/quote]
Davisite 2, frankly I think you are missing the point. No where have I stated or to the best of my knowledge has Attorney General Brown stated he will make the legal decision on the constitutionality of Proposition 8. Clearly the Federal Courts will decide the matter. But as attorney general, Brown can be an advocate for or against anything including Proposition 8. He can file a lawsuit or defend against one. He can join in on the lawsuit to overturn Proposition 8, or join in defending it or remain silent. All of these possible actions the attorney general can take should be grounded in the law beginning with the highest laws derived from and in accordance with the United States Constitution. Again he has no obligation to defend a state law or portion of the California Constitution that he believes is a violating the US Constitution, and that is the case here. By doing so he is not making the final decision on the matter, but he is putting forth an opinion which the Federal Courts can agree with or not.
The California Attorney General’s legal opinions and beliefs are important, just as the plaintiff’s & their attorney’s legal opinions/beliefs and the defendant’s & their attorney’s legal opinions/beliefs are important. It is during a trial that those arguments are heard and sorted out by a judge or judges who will then make a decision/ruling as to which arguments they agree with or not.
AG Brown believes that Proposition 8 is illegal per the United States Constitution so he can decide what his office will do to properly represent the People of the State of California and honor his oath of office sworn to firstly “support and defend the Constitution of the United States.” Brown has stated he believes the proposition does not pass muster with the United States Constitution as many legal scholars including plaintiff’s lawyers David Boies and Ted Olson believe. Therefore he has decided not to defend the law in Federal Court. Again, AG Brown nor any of the litigants or legal teams in favor of or opposed to the proposition will make the final decision, but they will have influence on how the Federal Courts will finally decide.
[quote]davisite2
08/14/10 – 06:26 PM
…
Bill….I guess that you are saying that the CA Attorney-General has the power to decide which CA laws are in violation of the US constitution and to act,as our Attorney-General, according to his personal “beliefs”.[/quote]
Not at all. The California Attorney General does not have the power to make a final decision on which California laws are in fact a violation of the US Constitution. Only the Federal Courts have that jurisdiction. But he does have the power and duty to challenge or choose not to defend a California law which he believes is legally contrary to the US Constitution. He also has the power and duty to defend any California law he believes is in accordance with the US Constitution. In the case at hand he is of the opinion that the California Constitution as amended by Proposition 8 violates the United States Constitution and the Federal Courts will decide if he is right or not.
[quote][/quote]
Davisite2….”I guess that you are saying that the CA Attorney-General has the power to decide which CA laws are in violation of the US constitution and to act(refuse to perform his sworn duty to defend the CA constitution),as our Attorney-General, according to his personal “beliefs”
Bill Ritter…. “But he does have the power and duty to challenge or choose not to defend a California law which he believes is legally contrary to the US Constitution.”
I have nothing further to add after your “distinction without a difference” reply above.