Allies rally behind Prop 8 in judicial battle

A pair of legal organizations has stepped into the battle over California’s definition of marriage by filing amicus briefs in support of the voter-approved Proposition 8, which is being challenged in California’s Supreme Court.

Vincent McCarthy is senior counsel for the American Center for Law and Justice, one of the organizations filing in support of Proposition 8, a constitutional amendment that California’s voters passed by a margin of several hundred thousands votes, or 52 percent to 48 percent, last fall.

“The fact is that the voters of California took appropriate and constitutional action when they approved a valid amendment codifying marriage as an institution between one man and one woman,” McCarthy said in a statement. “The challenge to this amendment is legally flawed and improperly rejects the will of California voters. We’re hopeful the California Supreme Court will take the action necessary to uphold this amendment and clear the way for its implementation.”

As WND reported, various groups have challenged Propostion 8 in court, appealing to the judiciary to overturn the amendment, just as the black robes did to state law on May 15, 2008, when the California Supreme Court ruled the state’s marriage laws unconstitutional for not including homosexual couples.

Seven justices in Supreme Court courtroom in Sacramento, from left to right: Associate Justice Carlos R. Moreno, Associate Justice Joyce L. Kennard, Associate Justice Kathryn Mickle Werdegar, Chief Justice Ronald M. George, Associate Justice Ming W. Chin, Associate Justice Marvin R. Baxter and Associate Justice Carol A. Corrigan

According to court documents, Proposition 8 is now being challenged on the argument that it constitutes a revision of, rather than an amendment to, the California Constitution, that it violates the separation of powers doctrine under the California Constitution and that it unfairly invalidates marriages of same-sex couples performed between May 15 and the fall election.

The ACLJ brief argues that Proposition 8 is a validly enacted amendment that “does not create far reaching, sweeping, or profound changes in the state’s constitutional scheme.” The brief also asserts that the amendment does not violate the separation of powers under the California Constitution.

“Petitioners bear a heavy burden of persuasion in challenging Proposition 8 – a duly enacted constitutional amendment – in light of the great weight that the California Constitution affords to the will of the people,” the ACLJ brief asserts. “Through the passage of Proposition 8, the people of California have spoken clearly and unequivocally regarding the definition of marriage, and the amendment they approved took effect the day after it was enacted.”

The other organization supporting Proposition 8, the United States Justice Foundation, makes a separate argument that focuses primarily on question of the same-sex marriages that took place before the amendment was passed.

According to the USJF brief, the same-sex marriages were never valid.

“The Supreme Court did not, and cannot, change the language of California statutes, because changing the language of statutes may only be done by the California Legislature,” the brief argues. “The power to write laws belongs to the people and political branches of government, not the judiciary.”

Consequently, the brief argues, that while the Supreme Court did strike down California’s laws restricting marriage to only heterosexual couples, the administrative agencies that acted on that ruling by altering marriage certificates to include same-sex couples acted prematurely.

The USJF brief argues that only the state legislature can enact new rules and laws to comply with the Supreme Court’s decision, and until those laws are written, there is no legal basis for performing or recording marriages unregulated by state law.

“Administrative agencies,” the brief states, “have the authority to refuse to enforce the unconstitutional statute, but they do not have the authority to unilaterally, and without guidance from the legislature, or compliance with state law, create new rules and regulations.”

The brief concludes, “Until the California Legislature amends the statutes, any new marriage license form, without the statutorily required language, is lacking statutory support and, as a result, is invalid.”

The Supreme Court earlier rejected a stay on Proposition 8, allowing it to remain in effect and preventing more homosexuals from exchanging vows until the case is decided. Approximately 18,000 homosexual “marriages” have taken place since June when the court ruled 4 to 3 to legalize same-sex unions.

In response to the court’s decision to hear the challenges Randy Thomasson, president of Campaign for Children and Families, said the court must consider the will of the people.

“The court is playing with fire by threatening to destroy the people’s vote on marriage,” he said in a statement. “The California Constitution clearly says that the voters have the right to alter the highest law of the land. It’s the beauty of the American system of government. The four Supreme Court justices who unconstitutionally invented homosexual ‘marriages’ – Ron George, Joyce Kennard, Kathryn Werdegar and Carlos Moreno – seem to be ignoring the fact that the people get the last word, not the judges.”

Drew Zahn

Drew Zahn covers movies for WND as a contributing writer. A former pastor, he is the editor of seven books, including Movie-Based Illustrations for Preaching & Teaching, which sparked his ongoing love affair with film and his weekly WND column, "Popcorn and a (world)view." Drew currently serves as communications director for The Family Leader. Read more of Drew Zahn's articles here.