Cardinal Roger Mahony, Archbishop of Los Angeles, wrote this week that Judge Walker “got it wrong,” focusing on feelings instead of facts:
Today it was announced that U.S. District Court Judge Vaughn R. Walker has ruled that Proposition 8 which was enacted by the People of California is unconstitutional. His decision fails to deal with the basic, underlying issue--rather he focused solely upon individual testimony on how Prop 8 affected them personally. Wrong focus.
There is only one issue before each of us Californians: Is Marriage of Divine or of Human Origin?
Judge Walker pays no attention to this fundamental issue, and relies solely upon how Prop 8 made certain members of society "feel" about themselves.
Those of us who supported Prop 8 and worked for its passage did so for one reason: We truly believe that Marriage was instituted by God for the specific purpose of carrying out God's plan for the world and human society. Period.
The most interesting politico-legal question raised by Judge Walker’s same-sex marriage decision, I think, is whether it will provoke a new — and perhaps narrower — round of Federal Marriage Amendment activity. . . .
But now, with the federal district court decision recognizing a right to same-sex marriage, and another from last month striking down the federal government’s decision not to recognize same-sex marriages (using reasoning suggesting that states had a duty to recognize same-sex marriages), the matter is not hypothetical at all. The question: Will Republicans introduce a narrower amendment, perhaps saying something like,
“This Constitution shall not be interpreted in a way that would require any government to recognize a marriage, civil union, domestic partnership, or other similar status, other than a marriage between one man and one woman."
Professor Matthew J. Franck in the Public Discourse, says the Prop8 decision conveys the "palpable sense that one is being mugged by a progressive." When the judge himself is an advocate "even falsehood and fallacy have a decent chance." There's one consolation, "albeit a small one," that Walker's opinions shows "the best arguments advocates for a constitutional 'right' to same-sex marriage can muster are so transparently bad."
SAN FRANCISCO — A federal judge’s decision on Wednesday overturning Proposition 8 — California’s ban on same-sex marriage — has tossed a largely unwanted issue into the middle of the November midterm elections.
The decision, which ruled Proposition 8 unconstitutional, has complicated the political tasks before President Obama, whose aides had to explain in the wake of the decision that the president supported equal gay rights but opposed marriage rights for gay men and lesbians. . . .
“I definitely think it’s going to have an effect on the 2010 elections,” said Brian S. Brown, the executive director of the National Organization for Marriage, who called the decision the beginning of a “major national culture war.”
“You’re going to see ads, you’re going to see folks standing up on this issue, and the people that support Walker’s decision are going to pay a price,” Mr. Brown said. . . .
Mr. Brown said the decision — the first of its kind at a federal level — had effectively “nationalized” the issue. “Two years ago, three years ago, you had some Republicans saying, ‘I don’t see a threat from the courts,’ ” he said. “Well, Judge Walker made clear that the threat is not only coming, it is immediate.”
Maggie Gallagher, president of the Institute for Marriage and Public Policy, which opposes same-sex marriage, agreed, saying that her group was looking even further down the line with the case, which was appealed Thursday by supporters of Proposition 8 and is likely to go all the way to the Supreme Court. “We are also looking for opportunities to demonstrate that pro-gay marriage Republicans lose,” she said in an e-mail, “and to lay the groundwork for a federal marriage amendment, if the Supreme Court refuses to respect people’s right to vote for marriage.”
NOM Rhode Island Executive Director Chris Plante was on ABC Channel 6 in Providence yesterday to discuss the Prop 8 ruling. As Chris told viewers: “This is judicial activism almost at its worst. We have 7 million people in California who have been told ‘Your vote, your voice, doesn’t count.’”
RAY SUAREZ: . . . And, Professor, let me start with you. Today, that notice to appeal was filed, a formality. But what does flipping that switch do? What do the two teams involved in the original case start doing now?
ROBERT GEORGE, professor of jurisprudence, Princeton University: Well, they start to prepare their briefs and arguments for the appeal, which will be before a three-judge panel of the Ninth Circuit.
They will then either uphold Judge Walker or reverse him. However that comes out, it will likely then lead to a petition for a hearing en banc, that is, to have all the judges of the Ninth Circuit review the case. And then, however that comes out, it will go to the Supreme Court of the United States.
It's a peculiarity of our system that a decision as fateful as this one might very well fall to a single judge's decision, but that judge won't be Vaughn Walker. That judge might very well be Anthony Kennedy, Justice Anthony Kennedy of the Supreme Court of the United States.
Prof. Amy Wax of the University of Pennsylvania Law School, criticized Judge Walker’s Prop 8 ruling in the New York Times:
What is striking about Judge Walker’s opinion is that he consistently minimizes the central distinction between gay and straight sex: homosexual unions are sterile by their nature. They cannot produce shared biological children. Only opposite sex couples can create a mutual biological child. People worldwide have long recognized this as momentously significant.
Judge Walker also failed to appreciate that every child has a mother and a father. By definition, when a gay couple decides to raise a child, that child will live apart from its biological mother, or father, or both. Lots of children now live apart from one or both parents -– but our society has always regarded this situation as tragic or regrettable, and as falling short of the ideal.
Judge Walker declared a number of things as "fact" in this trial. One of them is Finding of Fact #77.
"Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians."
A federal judge has just found as a matter of fact (in his imagination) that Christians and members of other traditional faith communities are second class citizens, because their teachings harm gay people.
Brian Brown of the National Organization for Marriage said Walker’s decision Wednesday undermined public opinion and will ultimately bolster political support for a federal constitutional amendment banning gay marriage.
"Every time a court does this, we grow exponentially. People are fed up, and that's what's happening right now," said Brown, who has been leading rallies against gay marriage around the nation. "It's going to make clear what the ultimate solution is. You know, this issue was working it out on the state level before Walker made this decision. Now he’s made it a national issue. It's going to be an issue in the elections."
Over at Volokh.com, another legal expert, Orin Kerr, argues:
If the Supreme Court agrees to hear the case, I don’t think the factual record will matter very much. I think that for three main reasons. First, the Justices will know that this case presents a defining moment for their respective tenures on the Court. This will be one of the biggest decisions of their careers, and its importance transcends a single trial before a single judge with a particular set of witnesses. These sorts of mega-big-picture cases tend [to] rest less on the details of the factual record than other cases. Second, the Justices will certainly recognize. . . Judge Walker was trying to use his facts to make an argument designed to persuade the Justices to agree with him. For better or worse, I suspect a majority of the Justices will respond to that dynamic by significantly discounting those facts.
“Finally, a majority of the Court had relatively harsh language about Judge Walker’s rulings on broadcasting the trial when it took the remarkable step of overturning his order back in January. This passage at the end of the Supreme Court’s per curiam opinion stands out:
The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.
That’s not the kind of language that suggests that a majority of the Justices will be overly inclined to defer to the Judge’s factual findings in the resulting trial.
Mama grizzlies for marriage? Don't take our word for it about Maggie's CNN performance -- take Lauren's:
"I just watched your debate on CNN and you did an amazing job! Thank you for standing up for the marriage between and man and a woman. I really appreciate your hard work. You are incredibly well versed and an amazing strong woman. Thank you!”
(Aug. 5) -- The essential public purpose of marriage is to attach mothers and fathers to their children and to one another. Judge Vaughn Walker's ruling overturning California's Proposition 8 illustrates that he does not understand this basic point.
He replaces this public purpose with private purposes of adults' feelings and desires. He approvingly quotes a historian who explains that marriage is "a couple's choice to live with each other, to remain committed to one another, and to form a household based on their own feelings about one another, and their agreement to join in an economic partnership and support one another in terms of the material needs of life."
Nothing about children. No understanding that marriage connects generations. By the time Judge Walker and his ilk are finished, there will be nothing left of marriage but a government registry of friendships.
California's voter-approved law barring gays from state-recognized marriage has been struck down by a federal court. Chief U.S. District Judge Vaughn Walker ruled late Wednesday to overturn Proposition 8, the initiative approved by 52 percent of Californians to define marriage as between one man and one woman.
"[Proposition 8] unconstitutionally burdens the exercise of the fundamental right to marry and creates and irrational classification on the basis of sexual orientation," Vaughn wrote in his ruling. . . .
The National Organization for Marriage called Walker a biased judge and expressed outrage over the ruling. "With a stroke of his pen, Judge Walker has overruled the votes and values of 7 million Californians who voted for marriage as one man and one woman," said NOM president Brian Brown. "This ruling, if allowed to stand, threatens not only Prop 8 in California, but the laws in 45 other states that define marriage as one man and one woman.
"Never in the history of America has a federal judge ruled that there is a federal constitutional right to same-sex marriage," he added. "The reason for this is simple – there isn’t.”
A professional litigator, who shall remain nameless (because he might have to appear before Judge Walker someday), told me regarding Judge Walker:
"His grandiosity will be his undoing. He's effectively just called any judge or lawyer who thinks this is even a close question stupid. (To say nothing of the wretched majority of voters who actually enacted and support Prop 8.) Good thing. Was worried he might wring his hands and try to feign humility."
Even amidst the public backslapping and self-congratulatory high-fiving by superlawyers Ted Olson and David Boies as they take their victory lap, a quiet stream of concern about Judge Walker's ruling and their legal strategy is beginning to emerge from some pro-gay marriage legal scholars.
University of Minnesota law prof Dale Carpenter, over at The Volokh Conspiracy, called Walker's opinion a "maximalist" and "aggressive" approach. Carpenter doubts the success of Judge Walker's attempt to confine the facts to a few expert witnesses presented at trial. "By my count, [Judge Walker] uses the word “evidence” 54 times in the “Conclusions of Law” section alone. . . But I have never been convinced that the issue of gay marriage would be decided, in courts at least, by a battle of expert witnesses in the way we might decide whether a Pinto is unreasonably dangerous," warns Carpenter.
Another gay marriage supporter, Professor Doug NeJaime at Loyola Law School, Los Angeles agreed, telling the NYT: "I don’t see five justices on the Supreme Court taking Judge Walker’s findings of fact to the place that he takes them."
Carpenter concludes:
"[M]y concerns about this decision outweigh what I see as its merits. In reading so far, I think a notable feature of Judge Walker’s decision is its judicial maximalism — a willingness to reach out and decide fundamental constitutional questions not strictly necessary to reach the result. It is also, in maximalist style, filled with broad pronouncements about the essential characteristics of marriage and confident conclusions about social science. This maximalism will make the decision an even bigger target for either the Ninth Circuit or the Supreme Court. . . . Gay-rights groups, you may recall, initially opposed the Prop 8 litigation on the grounds that it was too much, too soon. Though they are publicly celebrating this ruling, I imagine in the background there is considerable unease about what happens next."
