Law and the Created Order
3/26/13 at 09:25 PM 3 Comments

The Hidden Threat of the Same Sex Marriage Cases

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The chambers of the Supreme Court of the United States.

While I was a law student, I had the privilege of being a member of my law school’s National Moot Court Team and representing our school in moot court competition. Moot court is not like a mock trial, which is for the hot-headed, emotional, and shallow student (not really). Moot court is appellate advocacy—it is dignified, gentlemanly, and rigorous (all of which trial advocacy can and should be). In the artificially created world of moot court, the trial is over and you are the lawyer for one of the parties on appeal. It is your job to write the legal brief that defends one position or the other and it is your job to stand up and deliver a thirty minute defense of your mock client before a panel of mock judges. Whether it sounds like it or not, the whole process is extremely intense, very stressful, and more fun than nearly anything else that I can imagine.

In moot court cases, there are always two issues. One is a substantive issue known as “the merits.” This is usually an exciting issue that has the potential to shift the paradigm of the law. It is the issue that mock political pundits would comment on if they had the chance. The other issue is jurisdictional—the legal question turns on nuanced interpretations of obscure statutes or court decisions that do not quite fit the present circumstances. These issues are not particularly exciting to outside observers and, honestly, when a court disposes of a case on the basis of one of these types of issues in real life, there is usually public outcry about a murderer being released on a “technicality.” To my chagrin, I was pigeon-holed early as a “technicality” advocate. I always was given the jurisdictional, statutory, or otherwise mundane issue to brief and to argue. Ultimately, however, I ended up preferring these types of issues because they were free from emotion and demanded pure “lawyering skills” to advocate effectively.

As odd as it sounds, moot court made me into an “appellate advocacy” junky. I love the process and I particularly love the “boring” jurisdictional issues. This week, the Supreme Court of the United States is hearing oral arguments in two cases that could very well prove to be landmark cases in that they address the definition of marriage and who has the power to define it. The definition is the exciting issue. It’s important and critical and crucial. To be honest, in the weeks leading up to this one, the fact that the Court is hearing these cases has been almost like “sensory overload” for me. There is so much interesting and exciting stuff going on with those arguments that I want to write about, but there are plenty of commentators, writers, and bloggers doing just that.

Not surprisingly, I have really been fascinated by the “boring” and technical part of the cases before the Court and, to be quite frank, this part of these cases could prove to be much more important to our nation than the merits. Let me summarize the jurisdictional issue before the Court in Hollingsworth v. Perry which was argued today: Following a procedure outlined in the Constitution of the State of California, citizens of the state collected enough signatures to place a question on the 2008 state-wide ballot. This question is known as “Proposition 8.” The people of California then voted and more Californians voted to affirm Proposition 8 which then effectively enshrined the traditional definition of marriage as being between one man and one woman, thereby making same-sex marriage a legal impossibility in California. This process is not peculiar to California and is a way to make law directly, effectively bypassing the state legislature and the governor. After it was passed, opponents of Proposition 8 challenged it in court and ultimately, the United States Court of Appeals for the Ninth Circuit held that the law was unconstitutional. The Supreme Court then agreed to consider the case.

The jurisdictional issue in this case is raised because the most natural defenders of the law are not actually the ones who are defending the law in court. The governor and attorney general of the State of California have declined to defend the law, so those who are the defendants are a group of citizens who advocated and organized the initiative. In effect, the duly elected officials of the State of California have refused to defend the duly enacted laws of the state and left that responsibility to individual citizens. The jurisdictional question is whether or not the Court can even consider the merits because if the defendants lack the legal right to be heard in Court (known as “standing”), the Court simply lacks jurisdiction and has no choice but to dismiss the case without ever even considering the merits.

More than likely the Court will determine that it does have jurisdiction and that the defendants do have standing, but the argument that is made by plaintiffs is that citizens of a state do not have the proper authority to defend the state’s laws. The officials of California have already determined that they do not approve of Proposition 8, so they are passively working to defeat it by refusing to defend it, but it was these very officials that the people of California had to circumvent in order to enact the law from the beginning. Without even considering the merits of the underlying case, this argument is problematic.

Ballot initiatives, jury nullification, and other “grass roots” means for making law are mechanisms that are in place that give citizens the ability to work around an unresponsive, ineffective, or oppressive government. They can also be a means to deal more directly with issues that are fundamentally divisive and not best suited for a legislature to consider. If plaintiffs prevail on this point, they will have effectively short-circuited the democratic process. They will have concentrated every ounce of power in the government and taken from the citizens their only vehicle for exercising self-government in such a powerful way. All that need happen when a government disapproves of a law enacted directly by the people is to find a malcontent to challenge the law in a sympathetic court and then refuse to defend the law. With no party to present the state’s (or people’s) interest, the government christened malcontent wins and the law is struck down. This is an aspect of this case that is, win or lose on the merits, much larger than most understand.

The merits of Hollingsworth are important. If the Court decides to redefine marriage there will be far-reaching and dire consequences for this country, despite the emotional arguments advanced by the gay rights lobby, but if the Court determines that ordinary citizens lack sufficient interest in the laws of their own states to even litigate the validity of those laws, then the Court will have done far more damage to the democratic process and to a system that is supposed to be of the people, by the people, and for the people.

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