Washington, DC—On June 26 the Supreme Court issued a 5-4 opinion that invoked “equal protection” when reviewing the Federal Defense of Marriage Act (DOMA), but not once did the Court engage in an equal protection analysis. The Court then dismissed the Prop 8 case on standing grounds. Friday afternoon California time, in a surprise move, the Ninth Circuit Court of Appeals lifted its stay of Prop 8, and the California Attorney General rushed to perform a “marriage” ceremony for the two plaintiffs in the Prop 8 case. The blatant lawlessness of these decisions and acts undermines the rule of law and the confidence of the people in the Judicial Branch.
DOMA – Justice Kennedy, writing for the majority 5-4 Court, invoked “equal protection” but did not bother to apply equal protection analysis. Equal Protection first requires the Court to identity the claimed interest. Here, it is same-sex marriage. The Court must then determine if that claimed interest is an enumerated right in the Constitution. There is obviously no enumerated right to same-sex marriage. The Court must then determine, if the claimed right is not enumerated, if it is deeply rooted in history. Here, it is not. In fact, for most of our history, homosexuality or sodomy has been a “crime against nature.” Had the Court applied the standard equal protection analysis, DOMA would clearly be upheld. “In purporting to strike down DOMA, the Supreme Court bypassed the Constitution and prior Court precedent. At some point the American people have to question the legitimacy of autocratic judicial inventions. This case certainly demands a serious discussion about the legitimacy of the DOMA decision,” said Mat Staver, Founder and Chairman of Liberty Counsel.
Prop 8 – In the Prop 8 case, the Court dismissed the case based on lack of standing. On June 26 the Supreme Court clerk issued a letter to the Ninth Circuit Court of Appeals, stating: “The judgment or mandate of this [Supreme] Court will not issue for at least twenty-five days pursuant to [Supreme Court] Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court’s action on the petition for rehearing.” In other words, the court of appeals should not act until after the Supreme Court mandate has issued, and that takes at least 25 days. Despite the Supreme Court’s letter and Rule 45, at 3:23 p.m. (PT) Friday afternoon, June 28, the Ninth Circuit Court of Appeals lifted the stay, and twelve minutes later, at 3:35 p.m., California Attorney General Kamala Harris tweeted she was on her way to the San Francisco City Hall to marry the plaintiffs, which apparently happened art 4:15 p.m.. “The court of appeals clearly violated the distinct rule that requires that it not act until mandated by the Supreme Court, and no such mandate was issued,” said Staver.
“As a constitutional attorney who respects the rule of law, it is disheartening to see courts misbehave in order to reach a predetermined result. Thomas Jefferson understood that the judiciary was supposed to be the weakest branch of government, but he also warned it could be the seed that results in the dissolution of the Republic if judges did not exercise restraint. The Supreme Court and the Ninth Circuit Court of Appeals, in the marriage cases, illustrate why Jefferson was concerned. These decisions are not based on the law or the Constitution, are devoid of reason, and are contrary to natural law. If judges proceed with issuing constitutional opinions that have nothing to do with the Constitution or the rule of law, I fear what Thomas Jefferson feared – that this will be the beginning of the dissolution of the Republic,” concluded Staver.
Liberty Counsel is an international nonprofit, litigation, education, and policy organization dedicated to advancing religious freedom, the sanctity of life, and the family since 1989, by providing pro bono assistance and representation on these and related topics.