NOM BLOG

Cheated: How the Courts’ Treatment of Prop 8 Robbed America of its Democratic Process

 

Frank Schubert, NOM’s national political director, published a commentary yesterday at The Witherspoon Institute’s Public Discourse blog, reflecting on the course of court events that led to the recent U.S. Supreme Court decisions and the consequences those decisions have engendered.

BB PROP 8 RALLY 056 Frank SchubertSchubert points out that the "legal circus" has not only effectively disenfranchised more than seven million California voters, and that this should upset all of us: “Regardless of whether you see voters defining marriage as the union of one man and one woman as the ‘good guy’ or the ‘bad guy’ in this political drama, the process that killed marriage in California should greatly concern anyone who cares even remotely about democracy and the rule of law.

Schubert goes on to answer an oft-asked question in the wake of the recent SCOTUS decision: “How do you feel?”

I feel like we were cheated. Just like I felt as a kid watching the bad guy put a sleeper hold on his opponent, or hitting him below the belt or with the brass knuckles while the referee had his back turned, so have the legal system and politicians cold-cocked the people of California—seven million of whom went to the polls to lawfully enact Prop 8. Only this time, I realize there’s not likely to be a rematch. The cheaters won.

I feel like the rule of law has been shredded, and conniving politicians have been rewarded for ignoring their sworn oath of office. Public confidence in the judicial system has been dealt a severe blow. Supporters of same-sex “marriage” may be happy with the result today, but hold on until the tables are turned and a conservative governor and attorney general refuse to defend a law they don’t personally support, and there’s nobody left with standing to defend it. …

I feel like a broadside has ripped a great hole in the initiative and referendum process itself. I have managed nearly 40 statewide ballot initiative campaigns in my career. The initiative process is one of the few viable ways to get a recalcitrant government to respond to legitimate issues that are not being addressed by the legislature or the state administration. By its nature, citizens are often pushing a law that is opposed by those in power.

Now those very people in power—the governor and attorney general—have been given a pocket veto over the initiative process itself. They can invalidate any measure they don’t personally support simply by refusing to defend it in federal court. Such power was never contemplated by the framers of the constitution, or by the people of California, but that is the practical result of the Supreme Court’s ruling on Prop 8. Again—it is marriage today, but tomorrow it could be any other issue on the political spectrum.

You can read the rest of Schubert’s insights here.