On Thursday we noted that the Prop 8 ruling by SCOTUS was a “baby splitter” and that its effectiveness relied on both sides having mutual respect for each other and the law. As same sex marriage resumed in California yesterday, it is clear such is not the case. News about the legal problems are hard to find. From the article just linked:
John Eastman, a professor of law at Chapman University and the director of the Center of Constitutional Jurisprudence, told KPCC’s Nick Roman that the appeals court jumped the gun Friday. Under Supreme Court rules, a 25-day period is normally required to allow the losing party to petition for a rehearing.
“I’ve had a number of people asking me about legal recourse and quite frankly I’ve been telling them it’s hard to recommend legal recourse when what’s happening here is just such utter lawlessness,” Eastman said.
“There’s a reason we have a petition for rehearing. Sometimes courts get decisions wrong, and a petition for rehearing can point out errors in the court’s decision,” Eastman said.
But there is legal uncertainty whether the high court’s ruling could be enforced statewide, or limited to only a few jurisdictions.
A bit of explanation may be in order. Firstly, what cleared the way for the marriages to occur yesterday was that the appeals court lifted the order stopping same-sex marriage, that it issued in the wake of the controversial district court ruling. This is what Eastman is talking about. The second point is a bit more complex. A federal district court has limited jurisdiction, over only part of the state – it has no authority to make a ruling over all of California. This means that when Jerry Brown ordered the resumption of same sex marriage statewide, those portions of the state not under the jurisdiction of the district court that issued the ruling are technically in violation of the California State constitution.
What’s going on, effectively, is exactly what Eastman said – lawlessness. No one is respecting the law right now. It simply does not matter.
The closest analogy that I can come up with to where we are right now is Prohibition. But even then government officials who very well may have had a drink in a speakeasy the night before went through the motions of enforcing and respecting the law – they did not openly defy it. They may have personally and clandestinely disobeyed it, but their public and office actions DID NOT hold the law in disregard. What is happening in California right now does just that – it holds the law and legal procedure in utter and complete disregard.
And bear in mind, the law that has been summarily dismissed here is not mere legislative action, something of which one could reasonably assert the actions of an out-of-touch ruling class. Rather this is foundational, constitutional law passed by a direct vote of the citizenry. The proposition process has resulted in all sorts of nonsense over the decades – the legalization of marijuana being the latest. But ask yourself this question – suppose the sheriff in county x in Colorado decided he disagreed with the proposition as passed and continued to bust dopers with much public fanfare and energy. Would the state police arrest the sheriff? What if the governor agreed with the sheriff and ordered no action on the part of state officialdom. Would the dopers go to war with the sobers in the county?
The question now is what other law shall we decide, without process, may be disposed of? Given the parties and issues immediately involved, one fears deeply about the laws regarding religious freedom.
The nation faces a deep and fundamental crisis.
I have been reflecting of late on how we got here. We got here in no small part because conservatives deeply respect reason and the law while our opponents are willing to push the boundaries of those things beyond recognition. To respond in kind is, on our part, to cease to be conservative. Meeting our opponents on their own terms, tempting though it is, means they win. We cannot go there. And yet, as Eastman points out, legal recourse seems to evade us. Can we allow mob rule?
Of course not, but we may very well have to let the energy of this particular mob dissipate of its own accord. Patience is a virtue, and there may yet be method to the Supreme Court’s seeming madness. It may be that California will serve, as it has so often in the past, as exemplar for the rest of the nation – even if this time it is in the wrong direction.
In the book “World War Z” (the movie was nothing like the book), it is eventually decided that the only way to save the world is to withdraw to defensible positions, and that they cannot try to take everyone with them. If people can make it to the safe zones they are welcome, but they get no help in getting there. – all energy must be poured into establishing and maintaining the safe lines. It is only after years of reorganizing, of re-establishing law in what had become a lawless world, behind the lines that the world can return to the offensive. One must wonder if SCOTUS has not just drawn such a defensible line at the California border. (Before everyone abandons California, there were smaller safe zones in the abandoned parts of each nation – outposts that proved invaluable when the world returned to the offensive.)
This much I do know. If Justice Roberts is playing a “long game” with the Supreme Court, God’s game is much, much longer.