ACLU Attacks the Rule of Law in California

The ACLU is the leader in a combination of cases in the

California Supreme Court, seeking to overthrow the decision of the people to

define marriage as involving one man and one woman. The California Court

has already rejected the verdict of the people twice, as a law and then as

an initiative. If the Court now strikes a constitutional amendment as

unconstitutional, a revolt by the people against the court itself is a

likely outcome. It has been done before.

The facts for this article, but not all of the legal conclusions, come from

an article on the PowerLine blog, on 22 November, 2008. The title of this

article is, “The Plot Thickens in California.”

Since none of these articles have ever been based on a blog article, some

explanation of PowerLine is in order. It is written mostly by lawyers.

They have developed a reputation for accuracy in their legal and factual

research, and in breaking stories that the main stream media were avoiding

at the beginning. It is the work of reputable websites like PowerLine which

has made the Internet a more accurate source of information to many

citizens, than the main stream media.

As most readers are aware, the California Supreme Court has consolidated and

accepted for review several cases filed immediately after the results were

known on Proposition 8 in California. The cases were filed on differing

bases, but all sought the same result. They wanted the California Court to

throw out, once again, the actions of the people of California installing in

California law the definition of marriage as “between one man and one


The ACLU filed one of those cases, and is a prime supporter of the

consolidated case in the California Supreme Court.

The previous time the Court threw out the decision of the people, it was in

the form of a statute, which the Court said in a one-vote majority, was

unconstitutional. This time, in Proposition 8, the people wrote the

definition into the California Constitution, to put it beyond the reach of

the Court.\

As the article states, “if that court once again tells the voters ‘to go to

hell,’ … expect recall petitions to be circulated for the judges in

question.” .The assumption of the major media is that whenever the

California Supreme Court acts, for better or worse, that will be that.

This article points out that Californians have revolted against their

Supreme Court in the past, and that they have two ways of doing that again.

The simple way is to wait for the reconfirmation elections which all judges

in California face, and vote them out. The quicker way is to file petitions

to cause immediate recall elections of any members of the court who decide

to undercut the sovereignty of the people, one more time.

The example which proves that the California Court can push the people only

just so far, concerns the former Chief Justice, Rose Bird. After California

reestablished the death penalty for certain crimes, Chief Justice Bird and

two other Justices voted in 61 straight cases to overturn the death

penalties imposed by courts and juries below.

The people of California had had enough. They used their votes in a

reconfirmation election to remove Bird and her colleagues from office.

The basic issue, which readers of articles on the American Civil Rights

Union will recognize, is not restricted to the definition of marriage, nor

to California. Instead, in Jeffersonian terms, it is where does the

sovereign power rest in American governments at all levels. Does it belong

with the people? Or, does it belong to judges who have taken it away, and

claim it as their own?

This is the overriding question of government in the United States today.

The major media report nothing about this larger question, either because

they do not understand it, or because they do, but fear it. In any event,

the likely outcome is either that the California Supreme Court will look

over their shoulders at the people, remember Chief Justice Bird and her

removed colleagues, and vote to uphold Proposition 8. Or, the court will be

careless, and will strike Proposition 8.

If so, as this article suggests, we should expect a revolt at the ballot

box, in the second general election down the road, which will turn several

Justices of the Court into former Justices of the Court.

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