Ken Klukowski is Director, Center for Religious Liberty at Family Research Council. This article appeared on Breitbart.com, July 23, 2013.
San Diego County Clerk Ernest J. Dronenburg, Jr. has petitioned the California Supreme Court to order marriage licenses not be issued to gay couples while the court considers whether these licenses are illegal under California law. California's Proposition 8 amended the California Constitution to define marriage as one man and one woman.
The U.S. Supreme Court punted on the issue of gay marriage in Hollingsworth v. Perrylast month, holding that supporters of Prop 8 lacked legal standing to defend it in court, and therefore neither the Supreme Court nor the U.S. Court of Appeals for the Ninth Circuit had jurisdiction to rule on the question of whether defining marriage between one man and one woman violates the U.S. Constitution.
The only court that had jurisdiction, then, was the U.S. District Court for the Northern District of California, where Judge Vaughn Walker had struck down Prop 8's amendment, holding that this provision of the California Constitution violates the U.S. Constitution.
Three things are clear about Walker's decision, and one thing is unclear.
The first clear item is that his opinion is simply terrible. He made official judicial findings of fact that religious beliefs defining marriage as one man and one woman are irrational, and driven by either superstitious ignorance or hateful bigotry. It is emphatically not the province of the federal courts to make such pronouncements regarding the peaceful faith of over 200 million Americans.
It was a ridiculous broadside that insulted countless Americans, going far beyond the calm, dispassionate, reasoned analysis that is the hallmark of a well-crafted judicial opinion. When coupled with the fact that Walker is also openly homosexual, and that he told the public after the court trial that he was considering marrying his gay partner, his opinion looks so shockingly hostile towards Americans of traditional religious faith that some lawyers raised questions about whether he was an impartial judge on this case. Some had called for his recusal.
The second thing that is clear is that his ruling binds the parties to the case, which were the plaintiffs (two gay couples), and the defendants (several statewide officials and two county clerks from Alameda and Los Angeles). He had jurisdiction to enter judgment regarding those parties.
The unclear part is whether he even has jurisdiction within the rest of northern California. Normally when a plaintiff sues a defendant who does not defend himself, the court's jurisdiction is limited to entering a default judgment in the plaintiff's favor, and does not extend to writing an opinion that becomes binding precedent. Given that California's governor, attorney general, and other defendants refused to defend--which is why Prop 8's supporters became involved in the case to begin with--it is not clear that Walker had the authority to strike down Prop 8 even within his own district.
But even if he did, that power ends at the geographical boundaries of his district in the northern part of the Golden State. He has no authority over San Diego County (in southern California), and Dronenburg was not a party to the lawsuit. Nor does any California statewide official--such as Gov. Jerry Brown--have authority over county clerks. For Dronenburg, California law still defines marriage as one man and one woman. He filed a petition with the California Supreme Court seeking such a declaration.
We shall see what happens. The California Supreme Court is solidly liberal, and became more so after Brown appointed ultra-left Goodwin Liu to the court. And the reason Prop 8 was passed in 2008 is because this same court struck down California's previous traditional-marriage law as unconstitutional.
Perhaps a better strategy would have been for Dronenburg to stop issuing licenses to gay couples. He is under no court order to issue them, and the California Constitution commands him not to do so. He was in no serious danger of contempt of court.
His oath of office presumably includes obeying the Constitution of the United States and the California Constitution. The former is silent on marriage (given that there is no federal ruling on the question as far as he is concerned), and the latter says marriage is only one man with one woman. He should be on firm legal footing.
Then gay couples would sue him, and he could defend himself all the way to the California Supreme Court. Where, of course, the outcome might be the same.
But the die has been cast. And the fight over marriage continues.