Legal Procedure? We Don’t Need No Stinking Legal Procedure

I have been reading about the reaction the gay community has had to the passing of California’s Proposition 8. And it is dismaying, to say the least. I will ignore for the time-being the repugnant mobs and thugs who are trying to intimidate pro-Proposition 8 donors with their brownshirt methods, although that aspect of the reaction ought to be aired. For the moment, let me just say that it is surprising, to say the least, that the gay community would adopt methods so transparently reminiscent of treatment that they themselves have had cause to decry. Disgusting.

But in this post, I want to express my disgust at another aspect of the reaction.

Rather than respectfully accepting the vote and leaving the fight to another day, a number of groups have filed petitions with the California Supreme Court to have Proposition 8 stayed by the Court, while the Court reviews the case on the merits. In lay terms: these people want the Court to prevent Proposition 8 from going into effect until they get a chance to throw it out. These groups are led by a selection of 43 Democrats in the California State Senate and Assembly, and their efforts have been supported by the usual liberal suspects.

To those of you who are not lawyers, let me emphasize that this is astoundingly high-handed. Never before have I seen this sort of abrogation of the most basic legal procedures.

Let me explain. Generally, legal challenges to propositions have to be filed in the appropriate state superior court. After the superior court makes its decision, if any party is displeased with the result of their case on a question of law, then, and only then, can they appeal the decision to the appropriate court of appeal. And then, after that court makes another decision, if any party still feels aggrieved, the case can finally be petitioned to the California Supreme Court, which takes cases on a discretionary basis. The California Supreme Court is a court of last resort.

The process outlined above can take years, but that period is significantly foreshortened when you are talking about preliminary motions, such as injunctions or stays, and often when the courts feel that there is a need to respond to a matter of significant public import. But even so, it still has to run the legal gamut. Apparently, not so here. No, the anti-Proposition 8 forces want to go right to the top—the California Supreme Court—without going through any intermediate steps. Not only do they want the Court to invalidate the voters’ will, they contend that normal legal procedures (to which the rest of California’s citizens must submit) ought not apply to them.

For purposes of comparison: in 1994, Californians passed Proposition 187. Proposition 187 would have denied welfare and other tax-supported entitlements, such as public school and medical care, to illegal aliens. Cases challenging that proposition were filed in federal district court the day after it passed. That court issued an injunction—that is, the Court prevented the measure from going into effect. The injunction was appealed, and the case languished in the court of appeal until 1999, when then-Governor Gray Davis “mediated” a resolution. So even there, in a case which determined whether a certain group of people would even get basic government services, litigants had to follow standard legal procedure.

Just for the record, let’s review that scenario: the Proposition 187 case was filed in 1994, when California’s governor was Pete Wilson, and the Attorney General was Dan Lungren. Both defended Proposition 187. But the case sat in the notoriously liberal 9^th Circuit Court of Appeal until the administration changed. Then Governor Davis and his AG, Bill Lockyer, agreed to mediate Proposition 187 into oblivion. No wonder Proposition 8 foes are in such a hurry: the stars are all aligned between Governor Schwarzenegger, Attorney General Jerry Brown, a liberal state legislature, and a sympathetic supreme court. So bear in mind, California voters, that California’s government has already been known to sell out the will of the voters without a fight.

Now, let’s get this in perspective: the right of gay couples to “marry” had been in existence for a mere 174 days before Proposition 8 was passed—from May 15 until November 4. Are we really to believe, then, that the Court’s decision has become such a fundamental bulwark of our legal system, has become such an integral facet of our social fabric, and presents such a pressing and dire legal emergency, that all normal legal requirements may be recklessly thrown out the window so that our highest court must dump the rest of its docket and DECIDE IT RIGHT NOW?

Here’s the kicker: the California Supreme Court is seriously contemplating this nonsense. The Court has so far been willing to entertain this blatant disregard of standard legal procedure that it has asked the AG to respond to the petition. And Jerry Brown recommended that the Court take it. Talk about audacity. If ever there was an argument for throwing these bums out, this is it. Recall election, anyone? I don’t care what the issue is; I can’t think of a single legal matter, with the possible exception of an execution order, that is so critical that the rest of the state’s business can summarily be shunted aside and legal process ignored in order to appease a special interest.

I suppose I could entertain the Court’s eagerness a bit more blithely if I didn’t have the feeling that what is really going on is that the Court wants to take the ball because they brought the ball to the game and now they don’t like the way the game is going. The Court’s willingness to ignore its own procedures is either because it wants to appease the gay community for the sake of political peace (in which case its members ought to grow spines), or because it is miffed. Let’s face it, the Supreme Court has had its nose tweaked pretty severely by the voters in this case. Proposition 8 was placed on the ballot in a direct effort to overturn the Court’s May decision. And the voters did just that—in record time.

Why am I so incensed? Not because of the substance, even though I voted in favor of Proposition 8. No, I am incensed because if we entertain this sort of legal chicanery, then we are willing to entertain any abrogation of our laws in the service of some expedient end. And if the liberal community sits by and lets this happen because THIS TIME it happens to be one of their pet causes, how will they justify a different response when the cause is not to their liking? The precedent is being set.

For the sake of appearances, it would be nice if Lady Justice at least kept up the pretense of being blind. But I’m afraid, in California, Lady Justice is not only not blind . . . he’s in drag.

Next post: if you think this is bad, wait until you hear what the Proposition 8 foes are claiming . . .

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