Dronenburg’s Petition Forces Kamala Harris to Argue Against The Ballot Initiative Process

Brian BradyBrian Brady, Undesignated 17 Comments

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Thanks to Bradley Fikes’ reference to SCOTUSBlog, I found this:

New skirmish over same-sex marriage

If you’ve been following the same sex marriage debate, you’ll see that SCOTUS found that the petitioners didn’t hold “legal standing” in the Hollingsworth v Brown case.  SCOTUS ruled that only the State of California (through its attorney general) had the “legal right” to defend state constitutional law.  That’s all SCOTUS said in its decision.  The result is that the decision of a Federal District Court stands and that Kamala Harris (whom SCOTUS recognizes as having legal standing) refused to defend Proposition 8, for the People of California, in a Federal Court.

Politically, that means that Republicans can claim that Democrats might ignore some laws while enforcing others; a classic case of cronyism or favoritism.

Dronenburg’s petition puts Kamala Harris in an interesting position.  From the article on SCOTUS Blog:

The legal arguments in the new forty-six-page petition closely parallel those that are already before the state court in the case of Hollingsworth v. Brown (docket S211990).  State officials are to file their written legal arguments in opposition in that case on Monday.  Those will be arguments on the merits of the current status of ”Proposition 8″ in California.   State officials contend that the federal order applies throughout the state, and binds state officials.  They contend that they have the authority to control marriage licensing policy, in order to keep it uniform throughout the state.

Harris now has to defend her personal definition of marriage, which was made possible by a decision from a Federal District Court.  Why?  SCOTUS set a precedent that only Harris has standing.  Harris claims that the State of California has the ultimate authority to control marriage licensing policy.  That very claim puts her at odds with the majority of the voting citizens in California.

The Federal District Court ruled, in Perry v Schwarzenneger, that Proposition 8 was unconstitutional but it did NOT direct the State of California to authorize same sex marriage.  Keep in mind that same sex marriage was originally implemented on a city level in 2004, in defiance of Proposition 22 (which wasn’t overturned by the California Supreme Court until 2008).

Is same sex marriage “legal” in California?  I don’t know.  I DO know that it’s illegal to pass a law PROHIBITING same sex marriage but no direction was given to the State of California about legalizing same sex marriage or even regulating marriage whatsoever.  Harris claims though the the State of California DOES have the right to uniformly regulate marriage something that she refused to state or do earlier.

Now, Republicans can say that Democrats will not only refuse to defend certain laws, they will actively work against the will of the people when it suits their ideological agenda.

That useful talking point probably has nothing to do with same sex marriage and everything to do with Proposition 13, the very popular cap on property taxes and supermajority vote in the Legislature.  Democrats really want to overturn Proposition 13.  Lawsuits will be filed, Kamala Harris will refuse to defend it, a sympathetic Federal District Court will overturn it, and Kamala Harris (the only person with standing to appeal this decision) will refuse to to do so.

Democrats never really cared about same sex marriage until they saw the fundraising potential of holding Dick Cheney’s long-held position on the issue.   Democrats DO want your money though and Kamala Harris will be absent when they try to take it from you then present when they do.

I think that’s ultimately what Dronenburg is trying to accomplish here.

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Comments 17

  1. Although true the US Supreme Court did take the easy way out, the point the pro 8 people keep missing is both the Supreme Court and the Court of Appeals left standing Federal Judge Walker’s original decision ruling Proposition 8 to be unconstitutional, and standing had nothing to do with that decision. I wonder how many people have read Vaughn Walker’s decision. Yes, Judge Walker is gay and is living with his long-time partner. What the Pro 8 Legal team doesn’t mention is they were well aware of this fact when he was first assigned the case. What they refuse to tell you is they did not consider it relevant since Judge Walker has a history of court cases where he opposed gay issues based on the law, (earning him a reputation – not unlike myself and most gay Republicans – as a traitor by the gay community). And he did so in this matter as well… His decision was well researched and extremely well written. It was based on Law and the Constitution. Otherwise, I believe the 9th Circuit Court of appeal and the Supreme Court would have had no problem overturning it.

    As I said in the below published commentary, it is time to put Proposition 8 behind us and start concentrating on saving our great State by electing Fiscally and Governmentally conservative Republicans to office. Dronenburg’s latest Hail Mary will only enforce the stereotype and get in the way of that goal:

    To my fellow Republicans… ENOUGH ALREADY… Let’s worry about what’s important and win some elections…

    Last week I heard a joke – not for the first time – about the Republican Party. The commentator said the …”Republican Party is in favor of shrinking government so that it’ll fit in my bedroom”. Unfortunately, this belief Republicans harbor a ‘bedroom police’ mentality is widespread and has cost us dearly in recent years, and has been reinforced time and again by a small but very vocal minority within the party and their near obsessive attacks on Civil Marriage Equality, most recently shown by their hail Mary attempt last week to salvage their floundering crusade by asking the California Supreme Court to – in effect – overturn the decisions of a Federal Judge, A Federal Court of Appeals, and the U.S. Supreme Court. Fortunately, the State Court declined.

    First, let’s cut through the emotions and vitriol to the real truth… Mainly, Civil Marriage DOES NOT THREATEN traditional marriage… never has and in this country, never will.

    Civil marriage was first imposed in ancient Rome as a means to control who could marry whom. Principally it was meant as a means to control property and to keep Roman soldiers free from family obligations and therefore more loyal to the state. In our own country, civil marriage was originally created as a revenue source for towns and cities, and didn’t exist in large parts of our country. It wasn’t until the mid-19th century civil marriage became more about social engineering, which included – yes – control over who could marry whom. My baby sister has been happily married to the same man for over 20 years. During my lifetime, they would have been subject to imprisonment because Frank is Hispanic. Up through the 1950’s and ‘60’s most states had such laws which made it illegal for whites to marry blacks or Hispanics, and Chinese couldn’t marry anyone except other Chinese. It was not until the 20th century and the growth of government ‘safety nets’ we saw a realization society benefited in economic and other ways when two people took it upon themselves to accept the burden of care for each other and to work together towards their common future. In exchange for taking on that huge and expensive burden, the State grants limited benefits to the couple. It’s now time to accept the reality those benefits society receives are gender blind.

    In truth, nowhere in the Bible does it define marriage as between one man and one woman. There really isn’t any one definition of Traditional Marriage other than it’s a religious institution defined by the tenets of your faith and beliefs. Some churches may choose to recognize same gender marriage and most won’t, and that’s fine. Our Constitution has the strongest protections of Freedom of Religion ever stated in the history of man. Since 2004, thirteen states, the District of Columbia, five Native American tribes and all of Canada now have Civil Marriage Equality. Even more states have Civil Unions. Yet nowhere has a single church, temple, or synagogue been forced to conduct or recognize a same sex ceremony. And they won’t.

    As a conservative, I would prefer the State get out of the marriage business entirely. Until then, I support Civil Marriage Equality. And no less an icon of conservatism than Clint Eastwood has stated (in words I can’t repeat here) that fighting it is a dumb idea. His voice has been joined by an increasing number of political conservatives across the country saying Civil Marriage Equality is right and trying to deny any part of society that right is wrong.

    We know most Californians agree with Republicans on fiscal and governmental issues. It’s the social issues that make them vote against our candidates. Proposition 8 was a disaster for the party and continues to be one. Let’s finally be rid of this millstone around our necks and concentrate on economic issues and jobs… and finally win some elections…

    To the Religious Conservative minority, I believe not only are you on the wrong side of history… you’re just plain wrong…

    Ralph Denney
    Fmr Member of the San Diego County
    Republican Party Central Committee
    And Republicans Against Proposition 8

  2. “Let’s worry about what’s important …”

    Children’s rights to a mom and a dad are important. They are worth fighting for. They are, in fact, central to any successful fiscally conservative policies. When the family gets redefined, aka “breaks down,” it gets very expensive for the taxpayer, since the nuclear family is no longer doing some important core functions. These functions get picked up by the state. Who pays? You and me.

    “Civil Marriage DOES NOT THREATEN traditional marriage… never has and in this country, never will.”

    Man/woman is getting written out of the legal code in most ssm states. I consider that a pretty serious threat. To use an analogy: ssm is not simply like adding a room onto a pre-existing house. It rips out the foundation of the house. That’s a huge difference.

    “nowhere in the Bible does it define marriage as between one man and one woman.”

    Jesus was extremely clear about the definition of marriage in Matthew 19:

    “Haven’t you read,” he replied, “that at the beginning the Creator ‘made them male and female,’ and said, ‘For this reason a man will leave his father and mother and be united to his wife, and the two will become one flesh’? So they are no longer two, but one flesh. Therefore what God has joined together, let no one separate.”

    He’s quoting from Genesis 1 and 2, and making two things very clear:

    1. The definition of marriage is objective and goes back to the very beginning of mankind.
    2. Alterations to the definition of marriage were never part of God’s original design.

    “Proposition 8 was a disaster for the party and continues to be one.”

    With over 80K individual contributors, and over 250K volunteers (with over 100K of those showing up on election day!), I consider it a very successful venture, one that brought a lot of different groups together. Consider that it passed even though our state went blue for Obama. Consider also that marriage did better than Romney by an average of six percentage points in 2012 in the four states that voted on marriage. Like the Dems who agree with the 2A, some Dems get it. Some Dems agree that marriage is between a man and a woman.

    We need to quit buying into the LGBT/Leftist/divisive talking point crap, and realize that marriage is a unifying issue, not a divisive one.

  3. I had so hoped a discussion might focus more on the political maneuvering rather than the same-sex marriage issue. Frankly, I think Dronenburg is trying to put Harris in a position which shows she only litigates pet causes rather than to defend California law.

    1– Harris had a duty to defend Prop 8 in court–she didn’t.
    2- Harris will respond to Dronenburg’s claim and defend the District Court decision
    3- Harris may use the same strategy to eliminate Prop 13

  4. I’m with you Brian. Let’s see what the scenarios are here.

    For Kamala I think you’re right on her courses of action. On point 3, she and the Democrats certainly want to eliminate Prop13 but will they do it? The just pushed a tax through so would this be over reach? Woud they only challenge the corporate property tax part?

    For Jerry Brown who opposed Prop 13 before passage than embraced after passage he can easily flipflop but i don’t think he’ll do it until after 2014.

    For Dronenburg is this his way to stake out a possible run against Kamala? If so he is shooting to the tradionalist base. Not a bad way to build up GOP support but not the way to get the middle. Now he could be seeing things as Moonshadow does and assume there is still a large pro-prop 8 element here. He needs to hope so because if he tries a nuanced argument about Kamala not upholding the law I don’t think it would stick with the general populace because the Attorney General race gets almost no air time so a lot of people check the Democrat block based on perceptions of the national Dem and GOP parties and their impressions of them.

    Now a look at precedence. If the democrats see the ruling as a way to veto any proposition they don’t like they can run all over the constitution. thats the funny thing of this – SCOTUS said that if the AG doesn’t defend the constitution of California (which prop 8 was a part of) then basically that part of the constitution is null. Now it also requires a judge to rule it as unconstitutional as well so getting rid of prop 13 will be a hurdle for them. But if they do do it, then they are seriously playing with fire and possibly gives us what we want. Conceivably it would just take the GOP one chance to get an AG and then challenge the right to income tax or just not prosecute people that don’t pay their state income tax to effectively end it.

  5. ‘Moonshadow’ is raising some interesting points. Fortunately, as with all of the pro 8 arguments, these can be addressed. I’ll take each in turn:

    “Children’s rights to a mom and a dad are important. They are worth fighting for.”

    Agreed, as far as the statement goes… The reason I’m not generally welcomed to most gay activist (read Democrat activist) rallies and cocktail parties is because I never drank the kool-aide. Common sense tells you in a perfect world children should be raised by a loving father and mother. Unfortunately, we don’t live in a perfect world. We live in a world where just because a child lives in a house with a mother and a father, they are not necessarily being raised and protected by a loving couple. In a perfect world, California alone would not have 80,000 to 100,000 children being warehoused by a broken down system that cannot even give us an accurate number. Where we too often hear about these defenseless children being abused – and yes even murdered – by those entrusted to care for them. I for one will not be the one to tell a child he or she cannot have a safe and loving home just because it is headed by a single person or a same sex couple. Especially since same sex couples are far more likely to adopt older or mixed race children or even ‘crack babies’, than straight couples. How many ‘crack babies have you taken in, ‘moonshadow’?

    I also will not apologize for rescuing my niece and nephew from this system, and later adopting them to give them a chance for a future.

    By the way, what about the estimated 50,000 children who already live with same sex couples who now can enjoy the same survivor benefits too long denied them. They now enjoy equal protection. Or are they not entitled to that protection?

    ““Civil Marriage DOES NOT THREATEN traditional marriage… never has and in this country, never will.”

    Interesting ‘moonshadow” didn’t dispute my assertion… he or she simply used a questionable allegory and made a statement which isn’t even remotely true. Each state will and has dealt with the necessary changes to their laws concerning civil marriage equality. But a wholesale deletion of the words man/woman from their laws? Ah, no. Not necessary and not happening…

    “Jesus was extremely clear about the definition of marriage in Matthew 19:”

    Clear definition? Actually, ‘moonshadow’ is quoting Matthew 19 Para. 4-6. Jesus also said in Para. 8 & 9, “Moses permitted you to divorce your wives because your hearts were hard. But it was not this way from the beginning. 9 I tell you that anyone who divorces his wife, except for sexual immorality, and marries another woman commits adultery.” If you read ALL of Chapter 19, it becomes clear Jesus was denouncing divorce… not defining marriage. And boy, has traditional marriage taken a beating with the divorce rate hovering a bit over 50%. Yet I don’t hear ‘moonshadow’ or the religious right clamoring to outlaw divorce. Besides, I’ve already agreed traditional marriage is a religious institution which has nothing to do with Civil Marriage Equality. Also, if you go back to the Old Testament, are you taking about one man/one woman? Or one man and a thousand women? Both are referred to, as is a plethora of laws and regulations which don’t apply to our modern world – such as selling my daughter into slavery and living no further than a short walk from your temple. You can’t pick and choose ‘moonshadow’.

    “Proposition 8 was a disaster for the party and continues to be one.”

    ‘Moonshadow’ is doing a bit of rewriting of history. In truth Prop 8 WAS a disaster. Republican Leadership was convinced leading the charge would energize first time ethnic voters to support Republican candidates in droves. And do you know what we now call those voters? Obama Democrats. They did vote in droves… they voted For Prop 8 and Against Republican candidates. We lost races we should have won, and made the 2010 election one of the worst years for Republicans in history… until 2012 when the Prop 8 Party became essentially irrelevant and the Democrats gained a super majority in the Legislature. Also, both Gov. Brown and AG Harris were elected promising NOT to defend Prop 8

    In truth, the Prop 8 campaign outspent the no on 8 campaign by almost two to one. Yet it passed with barely 52 percent. And every poll conducted in the last two years show it would fail if voted on today. The fact only ‘moonshadow’ wrote an opposing opinion to mine, (not to discount Brian’s piece, which I actually agree with), is pretty indicative of just how little concern Civil Marriage Equality exists today.

    Finally, for those reading this, you might want to consider for a moment Brian and I signed our work… I have no idea who ‘moonshadow’ is.

  6. Brian and Elliott;

    I agree with both of you that a potentially dangerous precedent has been set. Although I support Civil Marriage Equality, the dangers of a Governor or an Attorney General deciding NOT to support the laws and Constitution of their State are very real, although in this case they could correctly claim they were elected with the promise to do what they did. None-the-less the potential of using this to indirectly over turn Prop 13 is very real and must now be guarded against. I would also remind you in many ways Prop 13 is already circumvented by the Democrats having a super majority.

    With this in mind I still maintain the best way to protect Prop 13 and save California is to stop wasting resources on an irrelevant issue and concentrate on electing fiscally and governmentally conservative Republicans. Prop 8 is a red herring. Let’s concentrate on the issues we can win on…

    Ralph

  7. The analogy to Prop 13 is a flawed one because individual taxpayers will face harm, and therefore will have standing, if Prop 13 is eliminated.

  8. Two things to remember:

    1. The State did defend Prop 8 in the initial trial.

    2. The appeals court upheld the original decision that Prop 8 was unconstitutional. This decision was vacated by the Supreme Court, but they had agreed with the lower court.

  9. Let’s for a moment pretend that Prop 8 was not about prohibiting same-sex marriage, but instead prohibited gun ownership. Assuming everything else about how this legal odyssey played was the same,
    do you believe that local County Assessors would have the right to confiscate guns since there wouldn’t have been an appellate court ruling that the initiative was unconstitutional?

  10. If the left hadn’t created a world where the government has control over most every aspect of your life, we wouldn’t live in a world where the County Assessor/Recorder needs clarification on who can and who cannot get married.

    Hypocrisy your analogy is flawed. Ernie has nothing to do with recording firearm paperwork, but does record marriages. I don’t know if I agree with what he is doing or not, but the situation is inarguably gray and could use some clarification. I don’t know if his motivation is as simple as that, but it’d make sense if it were.

    If he’s doing this in an attempt to stop the legal recognition of same sex marriages, it will fail and just continue to damage the Republican brand as the party who cares about individual rights. But if he is truly just looking for clarification, I get it.

  11. Brian,

    I stand corrected. Governor Schwarzenegger also chose not to defend Prop 8. I just assumed that he would have.

  12. “Governor Schwarzenegger also chose not to defend Prop 8. I just assumed that he would have.”

    I know Schwarzennger opposed Prop 8. I think he actually performed a same-sex marriage in his home.

    I agree with Ralph and Michael (and you HQ). If this keeps up, it will damage the brand. I do wonder however, how SSM became legal in CA. I do know that it is unconstitutional to pass a law prohibiting SSM but I don’t know who or what actually “pulled the trigger” authorizing it.

    I wonder if Ernie is trying to make that point and, on a larger scale, is making the point that the elites have no intention of complying with ballot propositions if they disagree with the results.

    That would be okay with me as well. If Californians can’t rely on ballot propositions, they will take a good, hard look at whom is running for Assembly, Senate, etc, etc.

  13. One point that might have been overlooked:

    A three judge panel of the Ninth Circuit Court of Appeals actually did rule against Prop 8.

  14. My understanding is that the CA Supreme Court was very clear today, in its ruling that:

    (a) the State has jurisdiction over the regulation of marriage
    (b) County clerks are to issue same sex marriage licenses without delay

    If that understanding is accurate, Dronenburg did more FOR SSM than he did against. There is definitive clarity now that SSM is indeed the law of the State.

  15. Brian,

    Do you think he and the FOC Defense Fund will now accept the decision?

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