22 December 2008

The Death of Law

As if to underscore the remarks of the Holy Father that democracy without values is insufficient to form a just government, comes this toll marker on the road to the abyss, from Fox News:

California Attorney General Asks State Supreme Court to Void Gay Marriage Ban

Friday, December 19, 2008

  • SAN FRANCISCO  —  California Attorney General Jerry Brown changed course on the state's new same-sex marriage ban Friday and urged the state Supreme Court to void Proposition 8.

In a dramatic reversal, Brown filed a legal brief saying the measure that amended the California Constitution to limit marriage to a man and a woman is itself unconstitutional because it deprives a minority group of a fundamental right. Earlier, Brown had said he would defend the ballot measure against legal challenges from gay marriage supporters.

"The amendment-initiative process does not encompass a power to abrogate fundamental constitutional rights without a compelling justification," he wrote. "Proposition 8 lacks such a justification."

Brown, who served as governor from 1975 to 1983, is considering seeking the office again in 2010. After California voters passed Proposition 8 on Nov. 4, Brown said he personally voted against it but would fight to uphold it as the state's top lawyer.

He submitted his brief in one of the three legal challenges to Proposition 8 brought by same-sex marriage supporters. The measure, a constitutional amendment that passed with 52 percent of the vote, overruled the Supreme Court decision last spring that briefly legalized gay marriage in the nation's most populous state.

Shannon Minter, legal director of the National Center for Lesbian Rights, called the attorney general's change of strategy "a major development."

"The fact that after looking at this he shifted his position and is really bucking convention by not defending Prop. 8 signals very clearly that this proposition can not be defended," Minter said.

The sponsors of Proposition 8 on Friday revealed for the first time that they would fight to undo the marriages of the estimated 18,000 same-sex couples who exchanged vows before voters banned gay marriage at the ballot box last month.

The Yes on 8 campaign filed a brief telling the court that because the new law holds that only marriages between a man and a woman are recognized or valid in California, the state can no longer recognize the existing same-sex unions.

"Proposition 8's brevity is matched by its clarity. There are no conditional clauses, exceptions, exemptions or exclusions," reads the brief co-written by Kenneth Starr, dean of Pepperdine University's law school and the former independent counsel who investigated President Bill Clinton.

Both Brown and gay rights groups maintain that the gay marriage ban may not be applied retroactively.

The Supreme Court could hear arguments in the litigation as soon as March. The measure's backers announced Friday that Starr, a former federal judge and U.S. solicitor general, had signed on as their lead counsel and would argue the cases.

The new brief provides a preview of how Proposition 8's supporters plan to defend the measure. It asserts that the Supreme Court lacks the authority or historical precedent to throw out Proposition 8.

"For this court to rule otherwise would be to tear asunder a lavish body of jurisprudence," the court papers state. "That body of decisional law commands judges — as servants of the people — to bow to the will of those whom they serve — even if the substantive result of what people have wrought in constitution-amending is deemed unenlightened."

Starr declined to discuss the arguments he and co-counsel Andrew Pugno advanced Friday. In an interview, Pugno said his clients' position on the same-sex marriages sanctioned in California between June 16 and Nov. 4 was not initiated by the Proposition 8 backers.

Rather, Pugno said the brief was a response to a question the court's seven justices posed to lawyers on both sides when they agreed to take up the challenge to Proposition 8 brought by gay rights advocates.

"The people passed Prop. 8," he said. "We are defending that."

Jennifer Pizer, a lawyer with the gay rights firm Lambda Legal who is helping represent gay and lesbian couples in the effort to undo the ballot measure, said Friday that vacating a marriage carries a host of legal repercussions and can not be accomplished so easily.

"This purported change exists in a landscape of a legal system that has rules, and those rules include the idea that changes in law affect people moving forward and do not apply looking backward to take away the vested rights people have," said Pizer, who recently married her longtime female partner.

The cases are Strauss v. Horton, S168047; City and County of San Francisco v. Horton, S168078; and Tyler v. State of California, S168066.

11 comments:

thetimman said...

When a Court can rule a duly-enacted amendment to the Constitution unconstitutional, then the Constitution no longer exists.

Anonymous said...

If the court does do this, would this be a scenario where a State issue is appealable to the United States Supreme Court?

Any Constitutional lawyers out there?
Tip

Dust I Am said...

Succinctly said, Timman.

Mr. Basso said...

thetimman - just a heads up:
every time i pull up St. Louis Catholic my browser shuts down. I peruse a lengthy blog roll every day, and yours is the only one that crashes my browser. Have any other readers had this problem? Is this the handiwork work of a certain "pastoral team" or "she-priest"? Or do I just have a persnicketty browser?

Anonymous said...

Marriage can't be defined any differently than a union between a man and a woman - period.

Once it is redefined to include the perverted coupling of homosexuals it must also include all unions! If society does not admit this and face this fact they are really putting our country and the freedoms we enjoy at great risk..

The thought of a grown man marrying a child is repulsive is it not? Or someone marrying their dog? Well also repulsive and unheard of was the idea of a man marrying a man just about 15 years ago. . .

thetimman said...

Mr. Basso, I haven't had anyone else point that out, so I don't know.

Have you tried subscribing to the blog via the link on the right bar? Hopefully that solves the problem.

Anonymous said...

WAKE UP! DIVORCE IS THE REAL KILLER OF MARRIAGES

I'm all against gay marriage/unions.

But what we need is a constitutional amendment against easy, no-fault divorce.

Gays have never broken up a single marriage, or, so few that the instances are insignificant.

All these so-called conservatives who battle against gay marriage with "Defend Marriage" initiatives are just playing politics.

You can tell this by how they do NOTHING to reverse the laws (first enacted in 1960s and 1970s) that permit easy, no-fault divorce.

Also, these so-called conservatives get divorced at the same rates as liberals. Ugh!

And the Vatican and bishops have, in effect, set up Catholic "divorce" by allowing annulment mills to be run by liberal nuns who never saw a marriage they couldn't annul.

Lord save us! Lord save our marriages and our families!

Lord cause people to focus on the REAL deadly "virus," easy divorce, that has been "killing" marriages by the multiple millions for over 30 years now!

Tom

Anonymous said...

Anonymous/Tom
Although I am a divorced Catholic who remarried after an annulment, I find divorce a terrible thing. I hope your marriage is a holy and happy one. However, you speak from either naivete, lack of life experience and/or arrogance.
My wife now of over 21 years has been a true mother to my children of my "first marriage," yes, they chose to stay with their father. Their new mother taught them what it means to live a life with Jesus as the center of your life, something they didn't experience with their birth mother. "Our" grandchildren now have experienced from birth the love a person who charishes life and living a God-centered life. I have found a help mate who cares about my eternal salvation and I of her's.
Be careful of painting with a broad brush and black paint.

Anonymous said...

Tom,

My parents were denied nullification of their marriage as was a young couple I worked with 15 years ago. Both of them divorced on account of extreme, repeated adultery.

Divorce is only a symptom of the problem in marriage. The problem is sterilization and the birth control pill, which causes couples to use each other and cheat on each other. Laws cannot save marriages, Tom. Although no fault divorce was a mistake.

You should be wise enough to realize that gay marriage will destroy all marriage! Marriage between a man and a woman is what keeps society grounded. If the family goes, so do all morals, and crime will be rampant as seen in communities where the father is not present.

Anonymous said...

Although I'm not fond of annulments, I understand the meaning and rationale behind it. Marriage is sacramental a full understanding of the lifelong dimension of it is necessary for a true Sacramental marriage to take place. Repeated adultery proves that no such understanding is there, thus no Sacramental Marriage.

I've seen first hand the kind of damage "no fault" divorce laws can cause. My father has 5 siblings, my mother 7. Of all those aunts and uncles , only 1 has not been married more than once, my mother's sister Amy, and her husband Seamus (who's Irish). All others have been divorced at least once and some have been married three times or more (unfortunately, my father is included in that #).

I've always said you need to change the culture before you can change anything else, and the proof of that is in my family. It's interesting to note that the only 2 couples who haven't been divorced and who have the most stable marriages are the ones who are the most religious and have the most children (Amy and Seamus and myself and my wife. )

Anonymous said...

JESUS DECLARED WAR ON DIVORCE AND UNJUSTIFIED ANNULMENTS

As recording in Mark 15:24, Jesus said "I have not come to bring peace, but the sword."

We need to declare holy war on the divorces and the unjustified annulments that, on the whole, are destroying the family, the economy, and the Catholic Church in America.

But this means, ultimately, declaring war on the personal SIN that leads to divorce and unjustified annulments.

(I am referring here not to the innocent party in divorce/unjustified annulment situations.)

Jesus did NOT come to make PEACE with sin, darkness and the ruination of souls.

As the great quote above from Jesus says, He came to wage spiritual warfare on sin and the powers of darkness.

This is the very reason for which the Catholic Church exists.

The Church also provides educational services, charitable services, and often functions locally as a community and cultural center.

But all these roles are not the CENTRAL things for which Church exists.

Jesus said: "I have come into the world as light, so that whoever believes in me may not remain in darkness." (John 12:46)

Paul said: "Fight the good fight of the faith. Take hold of the eternal life to which you were called." (1 Tim. 6:12)

Thus, the traditional description of the Church on earth was "The Church Militant."

The Church needs to return clearly and fully to all its traditional teachings, including notion of "The Church Militant."

Spinelessness, squishiness, liberalism, "detente" and all that leads souls, families, parishes, and nations into ruin.

Jimmy Carter promoted "detente" with the Soviet Union. Then Ronald Reagan came in and decided to WIN the Cold War. The rest is history.

Tom