Monday, April 14, 2014

The Courts

Unfettered from the tyranny of political pressure from the more powerful or numerous, the Courts, especially the Supreme Court, often surprise and do what they are suppose to do--apply the law blindly, evenly and dispassionately. Not that they are always correct. Moreover, they did about exactly what I predicted.

Comment 1: Jacob Dean - I completely agree with their decision on DOMA (even though I remain opposed to legalized Gay marriage) - and predicted it was doomed. I am not a fan of the fact that they punted on Prop 8, and the way they rules as they did troubles me... it exposed a serious flaw in our laws that we really ought to do something about.

They ruled that neither they, the Supreme Court, nor the Appelate Court beneath them were empowered to rule on the question of the Constitutionality of Proposition 8 because the people defending the Proposition did not have legal standing to appeal the Federal District Court's original opinion.

While I understand this legal point, and even can see the sense of requiring some sort of standing before letting people take issues to the various levels of our judicial branch, we ARE left with a problem. Proposition 8 (agree with it or not) was a voter approved initiative that bypassed both the executive and legislative branches of the California State government, this was done legally and properly within the confines of California State law. Once the law was challenged in the Federal judicial system, the same bypassed executive branch of the state simply refused to defend the law, leaving NO LEGAL ENTITY with proper standing to defend it in court; giving the challenge to the law functional guaranteed failure - if the lower court ruled in favor of the proposition, the plaintiff could appeal, as they had standing, but there would be no one to defend, giving a default judgement against the proposition.

If we are going to require legal standing that does not extend to citizens that voted a law into effect, should not the state in question then at least be required to mount legal defense of their own legally enacted law, and not simply be able to just say "nope, screw you" because they disagree with it politically?

My argument here isn't against how the Supreme Court ruled (though I do consider them cowards) but rather that our system as set up in cases like this is simply non functional and leaves no actual way for voters to bypass their legislative and executive branches who are unwilling to act on the wishes of the electorate.

Comment 2: Loren M. Lambert - The Utah legislature passed a nepotism law and a whistle blower law to protect my client from the excesses in the west desert but the AG would not enforce either at the time and sought to undermine the latter. It happens a lot more than you think but usually with laws that have little popular support or less visibility than Prop 8--which I predicted would be upheld or the Supremes would punt on which they did. If you go back and study standing issues it can be quit confusing, as I recall.

Loren M. Lambert © June 27, 2013 

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