Tuesday, July 1, 2008

A Genius Lives!

I am rendered speechless by this brilliant analysis:

Gay marriage: not legal in California...or anywhere!
"Gay Marriage" Is Not Legal in California or Anywhere Else in the United States!

by Gregg Jackson

Johnathan Rauch begins his article, "Why Gay Marriage is Good For America," (Opinion Page June 21, 2008) declaring: "By order of its state Supreme Court, California began legally marrying same-sex couples this week."

He is 100% incorrect. The fact of the matter is that "gay marriage" is not legal in California because the initiative marriage statute ratified by we, the sovereign people of California in 2000 (Prop 22), enshrined into statutory law that "only marriage between a man and a woman is valid and recognized in California," has not been changed. It remains the "law of the land."

The California Supreme Court merely issued a declaratory opinion that limiting marriage to one man and one woman was "discriminatory" and "unconstitutional." The court however, issued no valid or enforceable court order, as Mr. Rauch incorrectly asserts. Under the California Constitution, only the people can revoke or amend an initiative statute. None of the other three branches can revoke or amend one in any way unless the initiative measure itself so provides. Prop 22 contains no such provision as Judge Baxter clearly affirmed in his dissent.

The marriage certificates which have been illegally altered and issued in California with Governor Schwarzenegger's authorization remain as null and void as those illegally altered and issued by former Governor Romney in Massachusetts when he, like Governor Schwarzenegger, speciously claimed that the "court legalized same sex marriage" and that he was merely "enforcing the law."

Whether or not "gay marriage" is "good" for America is worthy of further debate.

As to whether it is "legal" in California, Massachusetts, or anywhere else in America is not.


Gregg Jackson

Los Angeles, CA

Gregg Jackson is the author of "Conservative Comebacks to Liberal Lies: Issue by Issue Responses to the Most Common Claims of the Left from A to Z" and talk radio show host on WRKO in Boston.

http://lgstarr.blogspot.com/2008/06/gay-marriage-not-legal-in-californiaor.html

7 comments:

Transplanted Lawyer said...

Again, this is simply wrong.

The author you quote has misread the opinion. The Marriage Cases opinion found Proposition 22 to be unconstitutional and therefore struck it from California's statutes under the court's power of judicial review: "...we determine that the language of section 300 limiting the designation of marriage to a union 'between a man and a woman' is unconstitutional and must be stricken from the statute."

And an actual order did issue: "Plaintiffs are entitled to the issuance of a writ of mandate directing the appropriate state officials to take all actions necessary to effectuate our ruling in this case so as to ensure that county clerks and other local officials throughout the state, in performing their duty to enforce the marriage statutes in their jurisdictions, apply those provisions in a manner consistent with the decision of this court."

Perhaps the author does not understand what a writ of mandate issued by an appellate court does in the legal system or the exact mechanics of making that happen; normally, this is not the sort of thing anyone but a lawyer would be concerned with. But whether it was a good idea or a proper understanding of the law, the Court did issue an order finding Prop. 22 unconstitutional and it did issue an order directing the clerks of the various counties to issue marriage licenses to same-sex couples. Pretending that these orders did not issue is wishful thinking on the part of SSM opponents.

paulbenedict said...

This post is a little tongue and cheek. I posted a similar comment in an earlier blog (The Media is Wrong Again: California Same Sex Marriages are Not Legal) in which I quibble that the marriages are not illegal because of the court order, but they are not exactly "legal." The point of the word game is to emphasize the massive rewriting of California law by the judicial branch.

Anonymous said...

Transplanted lawyer is incorrect in his analysis.

Number one, the judiciary doesn't have the enumerated constitutional authority to "strike" down or "overturn" any legislation. They merely issue advisory opinions on single cases before them.

Secondly,as dissenting Justice Baxter noted, "Under article II, section 10, subdivision (c), that body cannot unilaterally repeal an initiative statute, such as Family Code section 308.5, unless the initiative measure itself so provides. Section 308.5 contains no such provision."

308.5 contained no such provision! Got it. Only the people can amend or revoke an initiative statute according to our Constitution.

Lastly, no actual "writ of mandate" was issued. As detailed in my last Townhall.com article:

"The court said the plaintiffs were entitled to the issuance of a "writ of mandate" but issued no actual writ to state officials to perform the ministerial act of issuing marriage licenses to same-sex couples. Even if they had issued a "mandate," state officials are sworn to execute the law and not effectuate a court's opinion. Moreover, any court mandate or "order" would have been both unenforceable and invalid, since, according to a recent California Court of Appeals ruling from April of 2008, Sondermann Ring Partners v. Buenaventura, the court can declare an action of the legislature unconstitutional where such action exceeds the limits of the Constitution, but the courts have no means and no power to avoid non-action. In other words, the court is not constitutionally permitted to enforce its opinion."

http://www.townhall.com/columnists/Column2.aspx?UrlTitle=same_sex_marriage_illegal_in_all_fifty_states&Comments=true&ns=GreggJackson&dt=07/07/2008&submitted=true&comments=true&sort=desc&submitted=true&submitted=true#postComments

The "transplanted lawyer" may want to actually read the decision in toto and perhaps the California Constitution.

Gregg Jackson

paulbenedict said...

Hi Gregg,

Thanks for stopping by. I'm not sure Prop 8 will come up for a vote. The Monkey Court is on the loose. They've already refused to recuse themselves and are hearing arguments on the whether the initiative is a revision or deceitful... As if they are qualified on either point. I’d like to think that someone is bringing suit for the violation of Constitutional due process rights on about eighty counts. Who has standing to bring that suit? Would the ninth circuit have the ability to refuse to hear the suit, thus ending the process?

P.S. -- I've been running a shoot out on Hannity's blog for about two weeks. I wouldn't mind some reinforcements.

There are body parts all over the street and the smoke of ozone and gunpowder hangs heavily in the air, but, with all the dead guys, its getting sort of lonely. I've thought of changing my identity to "Jawbone of an Ass."

S.A. said...

Transplanted Lawyer said...
Again, this is simply wrong.

The author you quote has misread the opinion. The Marriage Cases opinion found Proposition 22 to be unconstitutional and therefore struck it from California's statutes under the court's power of judicial review:

NOT SO FAST, SLICK! CAN YOU LOCATE THIS "POWER OF JUDICIAL REVIEW?"

WHAT IS ITS SOURCE? (WHO GAVE JUDGES THAT POWER?)

WHAT IS ITS DEFINITION?

ACCORDING TO YOU, DOES "REVIEW" MEAN STRIKE DOWN?

AND WHAT ON EARTH DOES "STRIKE DOWN" MEAN?

WHY ARE LAWS THAT JUDGES CLAIM TO "STRIKE DOWN" -- OR THAT LAWYERS, POLITICIANS AND JOURNALISTS CLAIM THE STRUCK DOWN -- STILL ON THE BOOKS WITH ALL THE OTHER STATUTES?

WHAT -- ACCORDING TO YOU -- ARE THE LIMITS OF THE POWER OF "JUDICIAL REVIEW?"

IS THE EXECUTIVE BRANCH SUPPOSED TO CONTINUE ENFORCING A STATUTE AFTER A COURT CLAIMS IT IS UNCONSTITUTIONAL?

OR MUST THE EXECUTIVE BRANCH WAIT UNTIL THE LEGISLATIVE BRANCH DECIDES WHETHER IT AGREES WITH THE JUDGE(S) AND, IF SO, REVOKES THE STATUTE?

IS YOUR POSTULATED "POWER OF JUDICIAL REVIEW" A DEFINITIVE AND UNIVERSAL QUALITY OF THE JUDICIAL BRANCH?

IS THIS "POWER" -- DEFINED AS YOU HAVE DEFINED IT HERE -- BASED IN SOME CONSTITUTION SOMEWHERE?

HOW DO YOU KNOW THE ANSWERS TO THESE QUESTIONS?

LAW SCHOOL? WRONG ANSWER.

IN FACT, YOU SEEM TO T H I N K THAT YOU KNOW THE ANSWERS, BUT, APPARENTLY, YOU DO NOT.

IS THIS PURPORTED "POWER TO STRIKE STATUTES" A FUNDAMENTAL ASPECT OF THE "REPUBLICAN FORM OF GOVERNMENT" IN THIS COUNTRY?

IF I CAN SHOW YOU THAT IT IS NOT, WHAT THEN? AND HOW DO YOU KNOW THAT PROPOSITION 22 HAS BEEN "STRICKEN" FROM THE CALIFORNIA STATUTES? HAVE YOU CHECKED? WHAT BASIS DO YOU HAVE FOR CLAIMING THAT CALIFORNIA JUDGES CAN "STRIKE DOWN" LAWS? WOULD THE LEGISLATIVE AND EXECUTIVE BRANCHES BY BOUND TO OBEY THE COURT?

HOW DO YOU KNOW THAT? SHOW ME THE GOODS! YOU CAN'T. IT IS A LIE OF MODERN TIMES BASED ON A FAIRY TALE ABOUT MARBURY V. MADISON (1805), WHICH IS FRAUDULENTLY CLAIMED TO JUSTIFY A COUP D'ETAT BY JUDGES (AND LAWYERS).

"...we determine that the language of section 300 limiting the designation of marriage to a union 'between a man and a woman' is unconstitutional and must be stricken from the statute."

TWO PROBLEMS:
#1. "MUST BE STRICKEN." OKAY, THEN LET THEM TRY TO STRIKE IT. NOTICE THAT THEY DID NOT SAY "WE ARE STRIKING..." JUDGES NEITHER MAKE LAWS NOR REVOKE THEM NOR REDEFINE THEM NOR "STRIKE" THEM. THE ENTIRE GAME IS SMOKE AND MIRRORS TO KEEP IGNORANT LEGISLATORS AND VOTERS FROM GRASPING THE BASIC LIMITATIONS ON THE JUDICIAL BRANCH, WHICH IS DESIGNED TO BE "BY FAR THE WEAKEST BRANCH." NO STATUTE IS STRICKEN UNLESS A LEGISLATURE REVOKES IT. THAT IS WHY THESE FOUR JUDGES WROTE "MUST BE STRICKEN." AS IN THE CASE OF GOODRIDGE, THEY WERE HOPING TO TRICK THE PEOPLE AND BLUFF THE LEGISLATURE INTO REVOKING IT. BUT PROPOSITION 22 IS IMMUNE FROM BEING STRICKEN OR REVOKED BY ANYONE OTHER THAN THE SOVEREIGN PEOPLE WHO PASSED IT.

#2. WHAT IF THE SAME STATE JUDGES DECLARED WAR ON THE BELGIAN CONGO? WHAT IF THEY ORDERED THE COAST GUARD TO PAINT ALL ITS SHIPS PINK? WHAT IF THESE STATE JUDGES ANNOUNCED THAT THEY WERE STRIKING DOWN A FEDERAL LAW?

NO LEGAL AUTHORITY, RIGHT? BUT HOW DO YOU KNOW? THE ONLY WAY YOU CAN KNOW IS TO READ OUR CONSTITUTIONS. SO HOW DO YOU KNOW THAT COURTS HAVE NOT ONLY A ROLE IN O P I N I N G ABOUT THE CONSTITUTIONALITY OF A STATUTE, BUT ALSO A "POWER" TO "STRIKE DOWN" A STATUTE?

THE REST OF YOUR COMMENT IS WRONG TOO. YOU WROTE:

"And an actual order did issue: 'Plaintiffs are entitled to the issuance of a writ of mandate...' "

OKAY, IF THEY ARE ENTITLED TO A WRIT THEN GIVE THEM A WRIT! THIS WORDING SHOWS NO INDICATION OF A WRIT BEING ISSUED BY THE SUPREMES. IN FACT,A LOWER COURT MIGHT TAKE IT UPON ITSELF TO ISSUE A WRIT (APPARENTLY ONE HAS) BUT THIS IS AN ILLEGAL AND VOID ORDER. NO COURT CAN ORDER THE EXECUTIVE BRANCH TO VIOLATE THE LAW. NO OFFICIAL IN ANY OF THE THREE BRANCHES HAS SWORN TO OBEY COURT ORDERS. ALL OFFICIALS SWEAR TO UPHOLD STATUTES AND CONSTITUTIONS AS WRITTEN!

BILL CLINTON REJECTED A SUPREME COURT OPINION. SO DID T. JEFFERSON AND ANDREW JACKSON. LINCOLN SAID COURTS HAVE NO AUTHORITY OVER ANYONE WHO IS NOT A PARTY TO A CASE BEFORE THEM. THE MASSACHUSETTS, OHIO, ALASKA LEGISLATURES AND MA GOVERNORS HAVE IGNORED AND "VIOLATED" COURT OPINIONS.

COURTS HAVE NO POWER TO CHANGE MARRIAGE LAWS OR ORDER OFFICIALS IN THE OTHER TWO BRANCHES TO ACCEPT THEIR "INTERPRETATIONS"OF THE LAW. THE GOVERNOR IS THE HEAD OF THE E N T I R E EXECUTIVE BRANCH. HE DECIDES WHETHER TO ENFORCE A COURT OPINION OR NOT. THIS IS FUNDAMENTAL TO THE SEPARATION OF POWERS. JUDGES ADMIT THIS ALL THE TIME.

SEE: http://robertpaine.blogspot.com/2006/06/governors-new-clothes-how-mitt-romney_17.html

The Governor’s New Clothes; How Mitt Romney Brought Same-Sex Marriage To America
Table of Contents

Introduction - The Demolition of Democracy

Part I - Legal Authority

Part II - What the SJC Did and What They Did Not Do

Part III - Changing Common Law Did Not Change Chapter 207

Part IV - Changing Common Law Did Not Change the Constitution

Part V - Changing the Common-Law Is Legally Insignificant

Part VI - C.207 Continues to Prohibit Same-Sex "Marriage"

Part VII - Mass. Same-Sex "Marriages" Are Legally Void

Part VIII - We the People . . . Still Have Authority

paulbenedict said...

Hi,

I posted S.A.'s comments in the interests of trying to gain a clearer understanding of each speaker's point of view. There were no obscenities, but the all capitals all the time isn't appropriate. Passion on issues is fine, but there’s no money on the table here. We’re just talking.

Transplanted Lawyer said...

I have indeed read both the Constitution of the state and the entire opinion in the Marriage cases.

In their arguments, both Mr. Jackson and s.a. ignore the roles of an appellate court in the process of adjudication. Writs and orders are to issue from the Superior Court, not directly from the Supreme Court. This is because the Superior Court, and not the appellate courts, have the authority to issue relief of that nature. California Constitution, Article VI, section 10.

Mr. Jackson also confuses what the Supreme Court did actually with "amending" or "revoking" an initiative, which it did not do. The Supreme Court didn't "take it back" or change it. The Court said that a statute was inconsistent with the Constitution. As between the two, the Constitution prevails Therefore the statute is "stricken." That means it is pronounced void.

Contrary to some fringe claims, doing such a thing does not exceed the power of the Supreme Court; it is indeed the Supreme Court's core function. That's what "judicial power" is. Article VI, section 1 of the California Constitution vests that power in the several courts of this state, including the Supreme Court.

"Judicial power" inherently includes the ability to power and scope of judicial review in a Republican form of government, I refer you to a long line of cases with its most notable ornament being the case of Marbury v. Madison (1803) 5 U.S. (1 Cranch) 137, establishing that it is the job of a court, and not the job of an executive or a legislature, to interpret the laws as written, including the Constitution, and furthermore that it is the job of a court, and not the executive or a legislature, to determine when the two conflict. This is nothing new; Marbury v. Madison's claim of this authority was nothing new, either, as British courts been reviewing and striking down laws in England for centuries. Judicial power includes the power of judicial review the same way that air contains oxygen.

To suggest that a legislature may deprive the court of its inherent power of Constitutional interpretation is to assault the position of the judiciary as an equal branch of government. The Framers intended the judiciary to have power to participate in the process of making laws, and were fully conscious of the fact that the judiciary is not organized along democratic principles. See, inter alia, The Federalist No. 78.

If the Legislature (or, for that matter, the people acting by way of initiative) were to enact a statute that read: "Any person who publishes statements critical of the Governor is guilty of a felony," would that be the end of the story? The Governor would certainly like that law and might even enforce it. But the law would be obviously unconstitutional. And it would be the judiciary's job to say so -- and to do something about it.

You are correct to note that the executive, and not the judiciary, enforces and implements the law. The judiciary has only the power to state what the law is. That is the very definition of judicial power. If the executive insists on defying the law after the judiciary has announced that the executive's actions are in defiance of the law, then at that point there is very little that a judge can do to stop that.

If that is the case, then your anger at same-sex marriage should be directed at the Governor and the various county clerks, and not at the Supreme Court, because according to you, they are acting contrary to the law since what the Supreme Court did was a nullity. I think otherwise, but that is the extension of your argument.

No one would claim a usurpation of democracy if the Supreme Court struck down a portion of the Antideficiency Act, changing the way mortgage foreclosures were handled. Few people would care. What you object to is the substance of the Court's decision. If what you really object to is the Courts using the power of judicial review at all, then you'll want to join the ACLU and Handgun Control, Inc. in condemning the recent case of District of Columbia v. Heller.