Prop 8 Heading Back to the Supreme Court

Proposition 8 Will Come Back to the Supreme Court

By Chriss Street

The Lesbian, Gay, Bisexual and Transgender (LGBT) crowd were celebrating conservatives angry yesterday with the Supreme Court’s 5-4 decision to over-turn the Congressional Defense of Marriage Act (DOMA) and remand California’s Proposition 8 back to the lower courts.  But I believe the Court’s decisions were consistent with the Commerce Clause and 10^th Amendment of the U.S. Constitution.  

Pro-traditional marriage supporters may have suffered a short term headache, but I believe that within the next 18 months a more favorable case for Proposition 8 will soon return to the Supreme Court and be constitutionally upheld. The 1996 Republican Party platform endorsed DOMA by referencing section 2 of the act:  “We reject the distortion of laws to cover sexual preference, and we endorse the Defense of Marriage Act to prevent states from being forced to recognize same-sex unions.”

 The Democratic Party platform that year did not mention DOMA or marriage.  The bill moved through Congress and was passed by a vote of 85–14 in the Senate and 342–67 in the House, gaining support from 2/3 of all Democrat Senators and Congressmen.  The only Republican to oppose the bill was the one openly gay Republican Congressman, Rep. Steve Gunderson of Wisconsin.  Facing a tough re-election, President Clinton signed the bill into law to avoid a wedge issue.  Yesterday, President Clinton was the prime cheerleader for the Supreme Court’s decision.

Despite Barack Obama’s gaining 62% of the California Presidential vote in 2008, the state’s voters passed Prop. 8 state constitutional amendment initiative that amended Section 7.5 of the Declaration of Rights to provide that “only marriage between a man and a woman is valid or recognized in California” by 5%.  The main reason for passage was due to strong support by churches in ethnic communities.  African American voters gave 70% support for Prop. 8, even as they supported Obama by 94 percent.  Hispanic voters backed Prop. 8 by a 53%, while giving 74% support to Obama.

The Obama Administration, previously a defender of DOMA in lower courts, fought to over-turn the law in the Supreme Court under the Constitution’s 10^th Amendment State’s Rights Clause.  This is the type of “Federalist” argument is usually detested by liberals and championed by conservatives.  A prominent group of constitutional strict-constructionist scholars, including Ernest Young of Duke Law School and Randy Barnett of the Georgetown Law Center, submitted a powerful Friend of the Court Brief attacking DOMA for exceeding the proper limits of federal power and trampling on legitimate state authority:

“States derive the power to define marriage from their police powers, but Congress has no such power,” … “Nor can Congress justify DOMA under the Commerce, Spending, or Necessary and Proper Clauses.” In short, “Congress has no legitimate interest in defining marriage because it lacks enumerated power to do so.”

The Supreme Court sent Proposition 8 back to the lower court on “remand” because “appellants” lacked “standing” under the law.  Normally, the California’s Attorney General Kamala Harris, a Democrat who succeeded Gov. Jerry Brown in 2011, would have the “standing” to represent the voters.  But she not only refused to perform her duties, she submitted an “Amicus Brief” arguing that only public officials exercising the executive power of state government have authority to represent the state when laws passed by voters or the Legislature are challenged.  “California law affords an initiative’s proponents no right to defend the validity of a successful initiative measure based only on their role in launching an initiative process.”  The Supreme Court determined that without the initiative having any specific language about else could represent voters if the state attorney general refused, no appeal could be valid.

Decisions of the Supreme Court take 25 days before they are officially published, but these rulings set up the Supreme Court to hear a valid appeal when one of California’s 58 County Clerks, who are usually elected and have the sole Constitutional authority to issue marriage licenses, refuses to issue a marriage license to an LGBT couple.

It is my expectation that a conservative California county clerk will refuse to issue a marriage license to an LGBT couple.  The couple will then have to file a law suit to force the issuance and the case will be expedited by the lower courts back to the Supreme Court over the next 18 months.  With the Supreme Court and Obama Administration both having supported a State’s Rights precedent in DOMA, the County Clerk will have the proper standing for the Supreme Court to rule Proposition 8 a constitutional law.

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