The Lasting Damage Caused by Prop 8

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By Judson Phillips, CP Op-Ed Contributor
June 27, 2013|11:11 am

Technically the case was called Hollingsworth v. Perry. Most people know it as the "Proposition 8" case in California.

It was one of two gay rights cases decided yesterday in the Supreme Court. Actually, the case was not decided. It was instead remanded back to the 9th Circuit Court of Appeals to allow that ruling to stand and it means gay marriage will be legal in California.

The fallout from Hollingsworth v. Perry will be long lasting. And here is the surprising part about it. The fallout has nothing to do with gay marriage.

What is it?

There are two parts to the fallout. One is minor. One is major.

The minor fallout is that a Federal Judge has overruled the popular vote of a state. When Proposition 8 was voted on, the majority of Californians voted to declare marriage to be between one man and one woman. One Federal Judge, who happened to be not only very biased but gay as well, overrode the will of the people and imposed his own rule.

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What happened next is what will be the long-term fallout from Hollingsworth v. Perry.

After the decision, Governor Jerry Brown announced that the California government would no longer defend Proposition 8 in court. This would have the effect of allowing the Federal Judge's ruling to become final.

Instead, a group of citizens came forward to defend the case. Immediately there was a question of whether these citizens had standing to defend the lawsuit. Standing is a legal term that basically means someone has the right to be a part of the litigation.

The 9th Circuit had to refer the case to the California Supreme Court for what is called a certified question of law. Even though the lawsuit was in Federal Court, California law still governed the case and the 9th Circuit had to get a ruling from the California Supreme Court as to whether the citizens had a right to defend a lawsuit the government refused to defend.

The California Supreme Court said they did and eventually the case ended up in the Supreme Court where Chief Justice Roberts said the citizens did not have standing to intervene in the suit.

This case actually sets a very dangerous precedent. In the past, previous administrations would defend laws, even if they did not agree with the laws. The idea is simple. Once the law was in place, society had a strong interest in seeing consistency and predictability in the legal process. Once the Congress and President had acted, absent extraordinary circumstances, that should be the end of the discussions.

Not with the left. The left created this new tactic and it is one conservatives should fully exploit.

The left has used a tactic called "Sue and settle" where special interest groups sue the Federal Government and sometimes state government and the government quickly settles the case. Then the consent order from the settlement governs, regardless of what the Congress or the legislature wants to happen afterwards.

Two can play this game.

In 2016, there will be another Presidential election and if we get a conservative administration in office, conservative groups should sue agencies to block every law we do not like from Obamacare on down and the new administration should settle every one of those lawsuits.

Conservatives should adopt the "sue and settle" strategy with the new administration we bring in, in 2017.

Liberals should learn a lesson from this. Be very careful what you wish for. Because that which you want can be very easily used against you.

And we will.

Judson Phillips is an attorney and the founder of Tea Party Nation. He lives in Virginia with his wife and family. You can follow Judson on Twitter at @JudsonPhillips
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