Ed Whelan: Marriage at Stake


Legal scholar Ed Whelan gives a summary of the two cases pending before the Supreme Court involving marriage, including this summary of the winding path Prop 8 has taken to the highest court:

"...The saga of the anti-Prop. 8 lawsuit would make an unbelievable novel. No federal district judge has ever committed more egregious acts of malfeasance and manifest bias in a case than Vaughn Walker. In the end, Judge Walker concocted a federal constitutional right to same-sex "marriage" and based that right on a set of absurd factual findings. Only after he finished with the case and retired did he disclose that he was in the midst of a long-term same-sex relationship — which means that he had been ruling on his own legal right to marry his same-sex partner.

To compound the farce: The Ninth Circuit ruling on appeal, which also held Prop. 8 to be unconstitutional, was written by notorious liberal activist Stephen Reinhardt. Judge Reinhardt’s wife, Ramona Ripston, directed an American Civil Liberties Union affiliate that filed briefs in support of the Prop. 8 challengers in the same case and publicly rejoiced over Judge Walker’s ruling. Yet Judge Reinhardt somehow refused to disqualify himself from deciding the appeal. Then, in a transparent effort to evade Supreme Court review, he ruled that Prop. 8 was invalid on the narrower (but infirm) ground that it took away a right that the state Supreme Court had previously conferred.

The Supreme Court ought to reverse both the DOMA ruling and the Prop. 8 ruling when it decides these cases at the end of June 2013. Under any sensible interpretation, the Constitution simply does not speak, one way or the other, to the question of same-sex "marriage," but instead leaves the matter to the realm of representative government for decision — to each state to determine its own marriage laws and to Congress to determine what marriage means in provisions of federal law." -- National Catholic Register

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