Prop 8 and the American Form of Government

On the Facebook page of my friend Stuart Gaffney, who was one of the plaintiffs of California’s In Re: Marriage Cases, a European friend asked for some guidance understanding Executive, Legislative, and Executive branches of our Government and how they relate to the case. She was also interested in what the differences were between State and Federal levels. I wrote the following:


Rachel – I approve of the effort too!

All states have the same set of 3 branches that apply to their own state government. Local government generally works the same way too. It is the American model.


Here is that part where it gets messy on the ground with this issue.

In California, I guess historically government got so that it was not responsive to the citizens. So the Citizens of the time changed the Constitution that said citizens can pass laws without the usual process that involves the legislature proposing the law and the executive (governor) signing it.

In California, people can propose a law by getting enough signatures from the voting public to place it on a ballot. That law can be a general law, or it can be Constitutional Amendment.

As a result, our Constitution is easily amended, compared to others. We have over 500 amendments in the 100 years or so since this could happen.

By contrast, the US Constitution was ratified in 1791 and has only 27 amendments, 10 of which are the Bill of Rights and were passed at the time of the Ratification itself.

Which brings us to the issue and our hero Stuart: a few years ago, the people passed by ballot called Prop 22. IIRC, the language was the same or close to what Prop 8 says now about who can marry.

Stuart and his partner sued that that law was unconstitutional – the California Constitution. The case reached the California Supreme Court; in spring 2008 the Court decided in Stuart’s favor, and the law was tossed out.

That was the precise instant that 18,000 same sex marriages in California started. It was legal because the Court had thrown out any and all laws prohibiting it. Thanks Stuart!

But, while those marriages were happening, the people gathered signatures for a new law – this time a Constitutional Amendment. The wording is the same, but as an Amendment, the State Court can’t overrule it, only another Amendment can appeal it under California law.

Basically, the folks who lost Stuart’s case wanted to raise the stakes and make it harder to change then even it had been before.

Immediately after Prop 8 was passed, a few things happened.

First, there was a court case in California to decide if it was even allowed to pass an Amendment of the nature of Prop 8. The same supreme court that only months before had tossed Prop 22 (thanks Stuart!) ruled that Prop 8 was in the proper form an amendment has to be in, and hence was valid.

I am sure the Court doesn’t like the law, but they don’t get to decide about it this time.

So there was (and is!) a movement to get a a repeal amendment on the ballot. There was an active debate as to whether that should be this year (2010) or at the next opportunity (2012). Fro various reasons, 2012 has prevailed as the preferred choice, but within the movement that was a very hot discussion- repeal ASAP, or wait until there is more time to prepare carefully.

In the meantime, their is one other possible approach – all State laws must also be valid under the US Federal Constitution. Federal Courts decide these sorts of issues, not State Courts.

So while the plan was made to get a ballot issue to repeal Prop 8 in 201 was underway (collecting the requisite number of signatures will be no problem btw), independently a case developed where the matter would be presented as a Federal Constitutional issue. This is the well known Perry v. Schwarzeneggar case.

I should mention that just as local advocates were split on 2010 or 2012 for a repeal effort, people were uncomfortable about raising a Federal issue at this point. Ultimate such questions are decided by the US Supreme Court, and the nine members there are generally predictable in their opinions on this sort of thing. Right now, it is 4 on our side, 4 against, and one unknown. So any Federal case is a huge risk, you don’t get many chances, and if you lose, it could be decades before you have a realistic chance to try again, if then.

But, someone decided to take the plunge, as is their right, and while I won’t recap the trial itself here, because you probably know about it, what I will say is that is is in the Judicial Branchof the US government.

At the lowest level of that is the District Court for the area where the case arises. So in this case, California, and more specifically San Francisco. The 9th District covers that area, and the case was randomly assigned to Judge Walker. The trial was held, he made his ruling, that Prop 8 is unconstitutional under the US Constitution. This has nothing to do with the California Constitution at all.

Now, we are at the first level of appeal, which will be to the 9th Circuit Court, which covers appeals of the 9th District Court rulings. From there, any appeal would be presented to the US Supreme Court, which can decide to hear the appeal or not at its whim.

But…(there is always a but 🙂

There is some question as to whether even this first level of appeal is allowed. And that is unusual, generally the losing party has the right to appeal.

But in this case, the actual defendants were the Governor and the Attorney General, who represent the State in Court. Neither is in favor of Prop 8, so they declined to offer a defense. They said, in effect, we agree with the plaintiffs, we concede.

So who was a the trial then?

The group that was in charge of the Prop 8 campaign said to Judge Walker before trial, if the defendants won’t defend, then we would like to.

When this happens (and it is probably not often), the new group does not become defendants. Instead they are called Defendant-Intervenors, because they are “intervening” on behalf of the defense. Unlike the actual defense, they don’t really have anything at stake in the law suit, but they do have sufficient knowledge and interest to raise issues in court. So Judge Walker allowed that.

Well, we all know they didn’t do a great job, and they lost handily.

Now they want to appeal, which is natural.

But remember, they are not the actual defendants! And the actual defendants, the Governor and Attorney General, don’t want to appeal, they say they agree with the ruling. they would have 30 days to appeal, and that ends next week, on September 11.

So right now, the 9th Circuit Court is deciding if there is anyone that is allowed to appeal or not. There has been at least on case that was decided by the US Supreme Court which found that if the defendants don’t want to appeal, then the Defendant-Intervenors are not allowed to either.

This is where we are now. If the D-I can not appeal, the case will likely die right here and Judge Walker’s ruling will be final,but apply only to California. There are other possibilities too, covered on numerous blogs.

If that happens, then Prop 8 would be ruled invalid, and California law would revert to the way it was before Prop 9, which means the Stuart’s case would be the law of the land again, and people will start getting married in California instantly, as in the very next day. (Thanks Stuart!)

Posted in Same Sex Marriage Rights.