More cartoons from Gary Varvel

In yesterday’s San Francisco Chronicle, law professor Nelson Lund says "Prop 8 judge makes strange charge":

A federal judge in San Francisco ruled Wednesday that President Obama is a bigot. And not just the president. Joe Biden as well, and Hillary Rodham Clinton and Sandra Day O'Connor. And maybe you, too.

The judge didn't put it that way, of course. Technically, he ruled that an amendment to California's Constitution violated the U.S. Constitution by defining marriage as a union of one man and one woman. That amendment was approved by voters after a state court declared that a similar statute violated the state Constitution. The amendment then was challenged in federal court as a violation of the U.S. Constitution.

This was a strange ruling. The U.S. Supreme Court decided in 1971 that an identical challenge to the traditional definition of marriage was meritless. Nor has the Supreme Court ever suggested that its 1971 decision was wrong. Wednesday's ruling relied primarily on a constitutional doctrine that forbids laws having no conceivable rational purpose or no purpose except to oppress a politically unpopular minority group. After a lengthy trial, the judge found that the people of California must have adopted the traditional definition of marriage because of moral or religious contempt for homosexuals and their relationships.

It was a strange charge to make against the people of California. California has the most progressive domestic partnership law in the nation, which gives same-sex couples all the same substantive rights and privileges available to married couples. Why would the judge think that the only possible reason for favoring the traditional definition of marriage was bigotry? He reasoned that every other possible explanation for the voters' decision was so ridiculous that only anti-gay feelings were left.

Read more.

From an email sent out by John Eastman to his supporters Saturday afternoon:

"Attorney General Jerry Brown was again derelict in his duty, not only refusing to defend the initiative, but actively joining with Plaintiffs in the case to have it invalidated. That should be troubling no matter where you stand on the merits of the initiative. Short version of my view: I think Judge Walker is wrong on the law and gravely mistaken in his factual findings, particularly his claim that procreation has never had anything to do with marriage, that "gender no longer forms an essential part of marriage," and that heterosexual and homosexual couples are identical for all purposes relevant to marriage. The proponents of same-sex marriage are exuberant over those factual "findings", believing that the appellate courts will have to accept them as binding in the case. But those factual claims have such an Alice-in-Wonderful, "up is down" character to them that I think they will actually produce the opposite result in any sensible appellate court. Most judges I know are simply going to scratch their heads and say, "Are you kidding me?" when they read Judge Walker's opinion."

Prof. Eastman's views are circulated widely:

"As you might expect, my commentary was immediately picked up by the mainstream media, and I've been fielding phone calls from newspapers (AP, Reuters, Los Angeles Times, Orange County Register, San Francisco Chronicle, Sacramento Bee, etc.), doing radio interviews (Hugh Hewitt, NPR, KQED-San Francisco, etc.), and even appearing on several television programs (Channel 4 in Orange County on Wednesday, CNN last night, and the Conan Nolan show on NBC, set to air at 9:00 a.m. and 11:35 p.m. Pacific Time on Sunday)."

Read Prof. Eastman’s FlashReport commentary on the ruling.

Watch Prof. Eastman on NBC Channel 4 in Los Angeles:

As we have noted before, under the headlines even pro-gay marriage legal experts are expressing increasing reservations about Judge Walker's strange opinion.  Yale Law Prof. Lea Brilmayer, joins the mounting criticism today in the Washington Post.

"The invalidation of California's Proposition 8 is based on the U.S. Constitution's due process and equal protection clauses -- not the California State Constitution -- and is potentially of national consequence. But while he rehearsed every nuance of the evidence introduced at trial, Judge Vaughn Walker left us with a remarkably limited and vulnerable opinion."

Other responses.

Maggie Gallagher
Democratic Pollster Douglas Schoen

The Washington Post asked a group of experts their views on the expected impact of Judge Walker’s Prop 8 ruling. Maggie responded: “[T]he ruling – a slur against the majority of the American people, who have been declared irrational bigots by a federal judge – is firing up millions of voters.”

MAGGIE GALLAGHER

Chairman, National Organization for Marriage

A litigator e-mailed me last week to say: "Walker's grandiosity will be his undoing." Even legal scholars who support gay marriage have expressed reservations about the ruling's "maximalist" nature. Instead of producing a lawyerly opinion, Judge Walker wrote an advocacy brief for gay marriage. I think it will backfire and the ruling is likely to be overturned, perhaps even at the U.S. Court of Appeals for the 9th Circuit.

In the meantime, the ruling -- a slur against the majority of the American people, who have been declared irrational bigots by a federal judge -- is firing up millions of voters, complicating an already difficult election for Democrats. Rush Limbaugh, who is not known as a social conservative, said, "The American people are furious. My e-mails are unbelievable. This federal judge yesterday, this decision, Prop. 8, California, has just put people over the edge, and all of these decisions are coming one after another from all corners of the federal government. It's as if we have absolutely no say in what is going on all around us. Decisions are being made for us, in lieu of us and imposed on us."

Rush is spot-on. This decision feeds into a larger narrative in which ordinary Americans believe they are losing control; that the powerful aren't responding to their views or values. The only way for people to respond to this kind of slur is through the political process.

At the National Organization for Marriage we are already seeing a flood of new activists and small donors, who are demanding we "do something" about this decision in November. This will revive marriage as a national issue, create new pressures for a federal marriage amendment, and put politicians who prefer to dodge on the spot.

As in 2004, Democrats will try to blame right-wing extremists for injecting the dread social issues into the campaign. But in truth, they will have Judge Vaughn Walker to thank.

Read more.

Other responses:

Democratic Pollster Douglas Schoen
Yale Law Prof Lea Brilmayer

NOM released the following statement this afternoon, after’s Rush Limbaugh’s commentary on the Prop 8 ruling:

Many Republicans shy away from gay marriage, but not Rush Limbaugh.  After Judge Walker's ruling, Rush said on the air that his emails were boiling over from voters angry at the way their voices and values are being ignored:
 
Rush Limbaugh:  “The American people are boiling.  The American people are furious.  My e-mails are unbelievable.  This federal judge yesterday, this decision, Prop 8, California, has just put people over the edge, and all of these decisions are coming one after another from all corners of the federal government.  It's as if we have absolutely no say in what is going on all around us.  Decisions are being made for us, in lieu of us and imposed on us."

Rush went on to say that the real civil right threatened by the Prop 8 litigation were Californians' right to vote:

Rush Limbaugh:  “We hear a lot of talk from the Obama administration about "civil rights."  Everything is turned into a civil rights issue -- equal rights, equal protection rights, whatever.  Endless things are done against us in the name of civil rights. But what is a more fundamental right -- a fundamental civil right in our system of government in a supposed republic -- than the right to have our voice heard, to have our vote respected? You want to talk about civil rights?  It doesn't matter what the people of California vote.  If the left doesn't like it, they will use the bastardization of power in this country to reverse it.  What about our vote being respected?  Without that right, we're no longer a republic.  The left only loves elections when they win them.  . . .
Because your Democrat Party has been hijacked firmly now by the extreme left worldwide.  If elections don't matter, we're no longer a republic.  If one judge, an activist judge using his personal policy preferences, can overturn an election involving seven million votes, then elections don't matter.”

Rush said Judge Walker had put the people on trial and found them guilty:
 
“According to Judge Walker's reasoning every single one of these Americans is a bigot whose opinion on marriage has no place under Judge Walker's Constitution.  . . .  Judge Vaughn Walker, California, did not just slap down the will of seven million voters.  Those seven million voters were put on trial, a kangaroo court where everything was stacked against them.  He wanted to make it a show trial.  He wanted cameras.  US Supreme Court said no way.  Seven million California voters, your vote just wasn't overturned, you were on trial and now marriage has been codified as homophobia.  According to this judge, the only reason marriage is between a man and a woman is because heterosexuals have been discriminating against gays because they're homophobic.  So marriage, if this is upheld, marriage is simply codified homophobia.  And the purpose of this, of course, is to just rip to shreds the traditions and institutions that have defined the United States of America.  This "trial," Judge Walker, Judge Vaughn Walker, this "trial" -- and I put that in quotes -- was truly bizarre.  But most importantly the sponsors of the initiative ended up being on trial.  The voters of Prop 8 ended up being on trial.

I mean, same-sex marriage laws have been the subject of previous trials:  Iowa, Hawaii, Massachusetts, New Jersey, elsewhere in California.  In none of these previous same-sex marriage trials were the thoughts of those who were either for or against the initiatives in question put on trial, the thoughts, the imagined thoughts, the perceived thoughts.  In other words, those of you who voted for Prop 8 in California are guilty of hate crimes.  You were thinking discrimination. That's what this judge has said!  Truly unprecedented.  Never before have people been put on trial for their thoughts in same-sex marriage cases, but it's now happened.”

Maggie Gallagher, Chairman of the Board of NOM, applauded Rush Limbaugh’s comments:
“At a time when many Republicans shy away from so-called social issues, Rush Limbaugh, who is not himself noted as a social conservative, had the courage to call Judge Walker's opinion what it really is: a slur against the American people. And he's right, too:  Democrats will pay a price for Judge Walker's sins this November.”

To read Rush Limbaugh’s transcript in its entirety: http://www.rushlimbaugh.com/home/daily/site_080510/content/01125106.guest.html

The National Organization for Marriage is a nonprofit organization with a mission to protect marriage and the faith communities that sustain it. Founded in response to the growing need for an organized opposition to same-sex marriage in state legislatures, NOM serves as a national resource for marriage-related initiatives at the state and local level. For decades, pro-family organizations have educated the public about the importance of marriage and the family, but have lacked the organized, national presence needed to impact state and local politics in a coordinated and sustained fashion. NOM seeks to fill that void, organizing as a 501(c)(4) nonprofit organization, giving it the flexibility to lobby and support marriage initiatives across the nation. Find out more at www.nationformarriage.org. 

To schedule an interview with Maggie Gallagher, Chairman of the Board, of the National Organization for Marriage, please contact Mary Beth Hutchins, [email protected], (x105), or Elizabeth Ray, [email protected], (x130) at  703-683-5004.