The California Executive branch failed to perform their Constitutional duties, denying an opportunity for SCOTUS to rule on the merits


By: Gross

I am quite thrilled about the DOMA decision on June 26,2013. To a lesser extent, I am also please with the decision in Prop 8. With that said, I am a bit let down with the Prop 8 decision because proponents of same-sex marriage were denied an opportunity to have the Supreme Court of the United States make a ruling on the merits of the case, instead of kicking it out on a standing decision (even if they just affirmed the 9th Circuit, it would still be a huge win for same-sex marriage).

The road to hell is paved with good intentions, and here there is no doubt that California had good intentions. I fully believe that the California’s Executive branch refused to defend Prop 8 because of their disapproval of denying marriage to same-sex couples, but it was precisely that which gave the Supreme Court the opportunity to not make a decision on  that exact issue. What I would like to discuss is the fact that not only did the California Executive branch act in a way that prevented a decision on the merits from the Supreme Court, but they also violated the California Constitution.

The California Constitution sets out the rights of California citizens as well as the duties and the obligations of the Judiciary, Legislature, and the Executive branches. The article of the California Constitution that I am concerned with here is Article V, Executive. Section 1 of that Article specifically states:

“The supreme executive power of this State is vested in the Governor. The Governor shall see that the law is faithfully executed.”

Cal. Const. art. V, § 1(italics added). Most state’s  utilize the U.S Constitution as a template for writing their own Constitutions, occasionally granting more than the U.S. Constitution requires. California is one of those states (Note: California affords much greater 1st Amendment protections than the U.S.).  The U.S. Constitution lays out the President’s Oath of Affirmation:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

U.S. Const. art. II, § 1, cl. 7 (Italics added). This phrase has been widely acknowledge to include faithfully executing the law and will of Congress, who in turn, represent the collective will of the people. That is precisely what the California Constitution requires as well.
Proposition 8, regardless of how bigoted and close minded it was, was still a voter initiative. The voter initiative is specifically provided for in the California Constitution:

“(a) The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.”

Cal. Const. art. II, § 8(a). It follows then that the “People” had spoken, they voted to amend the California Constitution to ban same-sex marriage in California. It also follows then, that the Executive branch of California had a duty to faithfully execute the will of the People, and pulling from the U.S. Constitution “defend the Constitution” to the best of their ability. The Executive branch of California was under a Constitutional duty to defend the Amendment in a court of law, and failed to do so. The result in the District Court would have been the same, the result in the 9th Circuit Court of Appeals would have been the same, and most importantly, The Supreme Court of the United States would have had an opportunity to weigh in on the issue. A ruling from the Supreme Court of the United States  potentially would have guaranteed same-sex couples the right to marry in all states which had allowed same-sex marriage at some point in time. Unfortunately, that did not happen, and same-sex couples across America missed out on an opportunity to move forward. Thankfully, DOMA  went a long way, but I want more; “If you give a mouse a cookie…”
This post is not intended to imply that Prop 8 was decided wrong, it was decided correctly. I do intend this post to stand for the proposition that the Executive Branch of California failed to perform their Constitutional duty (with good intentions), and this deprived proponents of same-sex marriage a very important opportunity to make two massive leaps forward instead of one.
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