The following comes from a March 22 posting on the blog of Father John Malloy in San Francisco.
On Friday, March 22 the blog Patterico’s Pontifications released emails from December 2012, in which Proposition 8 Judge Vaughn Walker asked a law partner of Ted Olsen, one of the two lead attorneys opposing Proposition 8 before the Supreme Court, to get Olsen’s opinion as to whether or not Walker should attend the Proposition 8 arguments. The arguments will begin to be heard this Tuesday in Washington, DC. The emails themselves can be found at Patterico’s site. Patterico writes:
“Although the emails likely breach no ethical rules — Walker retired in 2011 — they do suggest a cozy relationship between Walker and Olson that some observers may find revealing. Walker seeks Olson’s opinion regarding attending the argument, defers to Olson’s judgment, and praises Olson’s legal skills. Walker’s demeanor in the emails is that of a well-wisher who wishes to make sure Olson’s argument is not disrupted, rather than that of an impartial former jurist. It is difficult to imagine that Walker sent a similar email to the defenders of Proposition 8, seeking their opinion as to whether it would be appropriate for him to attend. Walker and Olson’s partner have not responded to requests for comment.”
Well, one can only “reveal” something if it is hidden. Walker’s bias, bordering on obsession, was apparent from the start. In an August 13, 2010 National Review article, attorney Ed Whelan, President of the Ethics and Public Policy Center, called Judge Walker’s behavior in the Proposition 8 case “The most egregious performance ever by a federal district judge.” Mr. Whelan then supplied a long list of Walker’s actions (a list which would grow after Whelan’s article was published) in support of his assertion. Walker’s behavior was so bad that even supporters of same-sex “marriage” in the legal profession had to sit up and rub their eyes to believe what they saw.
Professor of Constitutional Law Dale Carpenter, supporter of same-sex “marriage,” on Walker’s ruling that the defenders of marriage lack standing to bring the case:
“What Judge Walker’s ruling means is you can sponsor a proposition, direct it, research it, work for it, raise $40 million for it, get it on a ballot, successfully campaign for it and then have no ability to defend it independently in court. And then a judge maybe let you be the sole defender in a full-blown trial and then says, ‘by the way, you never can defend this.’ It just seems very unlikely to me the higher courts will buy that.’”
Author Jonathon Rauch, supporter of same-sex “marriage,” on Walker’s “radical” ruling:
“Now, I agree with Walker that gay marriage is unlikely to cause any significant social harm and will do much good. But the judge insists that the testimony of a handful of expert witnesses in his courtroom rules out the possibility of harm so definitively as to make any attempt at caution or gradualism irrational. The evidence, he holds, is ‘beyond debate.’”
Lawyer and ethicist Jack Marshall, supporter of same-sex “marriage,” on Walker’s failure to disclose he was in a long-term same-sex relationship:
“Reluctantly, I have to agree that his disclosure, a year after his ruling, that he was in a committed relationship with a man when he was ruling on Proposition 8 alters that conclusion. Weeks ago, former federal district judge Vaughn Walker, who ruled last summer in Perry v. Schwarzenegger that California’s Proposition 8 is unconstitutional, publicly disclosed for the first time that he has been in a same-sex relationship for the past ten years. A straightforward application of the judicial ethics rules compels the conclusion that Walker should have recused himself from taking part in the Perry case.”
Patterico, also a supporter of same-sex “marriage,” closes by writing:
“This blog post is a piece of journalism, breaking a story that should be of public interest regarding the conduct of a former jurist on a significant case. This site does not advocate an anti-gay rights agenda, and the proprietor of this web site is a supporter of gay marriage (although he disapproves of the imposition of gay marriage on society through judicial fiat)…..But the behavior of Walker, as revealed by these emails, creates the appearance of a partisan rather than an impartial former jurist who simply believes he issued a correct ruling. Walker was so invested in his ruling that he wanted to watch the appellate courts’ argument himself. He went out of his way to make sure that he consulted with the winning side to help them prevail in the appellate courts. Specifically, he sought to learn whether his attendance at the appellate arguments would be acceptable to the prevailing party — and when told it would not be, he deferred to the prevailing party’s media strategy. All of this, cumulatively, suggests an emotional investment in the outcome of the case. The emails are likely to reinforce the widely held perception among Prop. 8 supporters that Walker was less than impartial in his rulings during the trial.”
To read Father Malloy’s original posting, click here.
OMIGOD, this is TRULY INFURIATING! Judge Walker not only had a VESTED INTEREST in helping to invalidate Prop. 8, he didn’t disclose ANY of his emotional and/or intellectual fanaticsm in getting Prop. 8 overturned. Shouldn’t all of this COLLUSION with the dark forces of the gay left by him, now coming out, completely demolish ANY pretense of Walker’s so-called impartiality and call into question his judicial integrity, not to mention his ruling in this matter itself, to the point of possible DISBARMENT?
Call me crazy, but it would surely seem so. And so where are all the impartial watchdogs of the judiciary here? For instance,are there INSPECTOR GENERALS of the judges and their rulings? Like so much else in California politics and the judiciary, corruption seems to rule, and blind radical egalitiarianism trumps most everything else; fairness, impartiality, you name it. GOD BLESS ALL, MARKRITE
Judges demand that other judges recuse themselves when issues come before them in which they have a vested interest. That is, unless we’re talking about homosexuals. They get special treatment apparently, and the world has become so crazy, that nobody has the courage to point out that the emperor has no clothes! Are the Supreme Court justices likely to rule on the side of homosexuals? Yes. If so, would this be the death knoll of democracy in America? Yes. But we can see the damage homosexuals and other morally lacking people have been doing to our country all along, whereas liberals and anti-Christians think we are the kooks! God save us; I don’t see the Supreme Court justices as sufficiently confident in democratic process as to allow the voters in California to decide the laws of the state. Only people in long black gowns are capable of that, ruling on whether our votes mean a darn thing or not. I’m expecting them to say they know better than the voters do, and there goes democracy, my friends. Oh well, it was not going to last when each generation has been increasingly ignorant, immoral, personally, socially and financially self-indulgent and irresponsible, superficial and self-absorbed. Benjamin Franklin was right when he answered the woman’s question about what sort of government the gentlemen had selected for the nation, “A democracy, madam, if you can keep it.” It has always been a cliff-hanger, but with 75% of our young people unfit for military service, how much longer could we expect it to last anyway?
You have a funny idea of democracy, Maryanne. Our government is NOT a matter of issues decided by majority vote at the ballot box—its a REPRESENTATIVE CONSTITUTIONAL REPUBLIC, which is a very different animal.
I also find it amusing that you mention the phrase “Democracy in America” which is also the title of a famous treatise written by Alexis deTouqueville—which, by the way, undercuts your premise. DeTouqueville coined the term “Tyranny of the majority” and wrote about how the constitution operates to prevent that from occurring.
That’s why the constitution protects individual rights, in part so that voting majorities cannot abuse their power. This is the key feature of a constitutional republic, which is what the United States has always been. Pure Democracy was only seen in the Greek city states of antiquity.
The fact is you’re just unhappy because you’re afraid the Supreme Court will rule against prop 8. You don’t really care a whit about the democratic system or the constitution—as I will soon demonstrate.
Let us now suppose 7 million California voters pass a law forcing all catholic priests to wear a giant warning label around their neck notifying others about their propensity to sexually molest children. Would you still be upset at the “black robed dieties” of the Supreme Court when they declared such a law to be unconstitutional? Would you still be railing against their contempt for the voters of California and warning that democracy was coming to an end? Would you still have the same reverent belief in the right of California voters to make any law they wished?
Such a law would be obviously unjust and violate numerous constitutional rights. You and I know that you would then be waxing philosophic about the “wonderful and just” Supreme Court and the wisdom of the constitution—and wouldn’t have a concern about the 7 million people who voted for the law. The fact is, the will of the voters is not unlimited—and should not be—as you would immediately recognize were you to live in world where the above took place.
I can certainly accept that you would disagree with a ruling invalidating prop 8. But you should be honest and admit that it’s because you want the state to enforce catholic values using the bully power of the state. Don’t to pretend to care about democracy, the constitution or act like you are willing to follow the will of the majority in all things. Such a pretense when you are only serving your immediate self-interest is nothing but hypocracy.
You write: “That’s why the constitution protects individual rights, in part so that voting majorities cannot abuse their power.”
Are you arguing that the California voters abused their power in passing Prop 8? If so, can you explain why?
Gibbon, I very carefully did not state that California voters were abusing their power by passing prop 8, but I can see why you would assume that such a presumption is implicit in my statements.
The focus of the post was to refute Maryanne’s idea that it was improper for the Supreme Court to even consider nullifying a ballot initiative passed by the voters of California. I recognize that the Supreme Court can make incorrect decisions (such as Roe, among many other errors). But I do see judicial review of legislation as one of the hallmarks of a constitutional democracy.
[Note: I am well aware judicial review wasn’t part of the constitution itself. Judicial Review came into existence in our invention of the constitutional republic by John Marshall simply stating he had the power in Marbury v. Madison (decided, I believe in 1801 or 1803).]
I do have some ideas on prop 8 and the constitutional issues it presents, but I haven’t thoroughly studied it by any means. My opinions are more “off the cuff” if you will. That said, I’ll dive into how I see the “rough shape” of the legal issues involved.
The primary issue is whether the state has the power to tell citizens they cannot order their private lives by choosing to marry a person of the same sex. If the state does not have this power, then the voters of California cannot enact prop 8—no matter how many people vote for it.
The constitution tells us that citizens have fundamental rights of free association and to pursue happiness. Also, since a number of churches now recognize “gay marriage”, 1st amendment rights of religious freedom are also at issue. Consequently, the state bears a heavy burden of proof in showing why they should be able to restrict these fundamental “liberty” interests.
Because the constitutional rights at issue root in the Bill of Rights, the state must pass the “strict scrutiny” test in order to “burden” them with restrictions. We do know that the state has SOME power to restrict marriage choices. That was decided in polygamy cases brought by Mormons many years ago. So it is possible for the state to restrict marriage choices—if they pass the strict scrutiny test.
To pass strict scrutiny, the state must show:
1) a compelling state interest
2) the law must be narrowly tailored to meet the state interest
3) must also be the least restrictive means of achieving a valid state purpose
In this case, the state is going to have to show some great harm that will befall society by allowing gay marriage. Then, they will have to show that banning gay marriage is both “narrowly tailored” and the “least restrictive means” of preventing that harm.
I think prop 8 is going to have a very difficult time passing this test. First of all, in law, you can’t make “God doesn’t like it” arguments because that violates the establishment clause. Similarly, a “it undermines the concept of marriage” fails by being a logically circular argument (i.e. the very issue is the “nature of marriage”, so that argument would boil down to “gay marriage isn’t allowed because it isn’t marriage”—in short it decides the nature of marriage issue without ever addressing the compelling state interest question).
The next typical argument is that “marriage is the basic unit of society” and “messing with it” risks the “very existence of society itself”. However, the state bears the burden of proof to show this proposition is true. In short, the state would have to show how Canada, Spain, Portugal, Iceland, Denmark, and many others (11 in all) are all suffering social breakdown. At the very least, the state will also have to show at least a viable mechanism connecting gay marriage to society breakdown and connect that mechanism to at what is happening in the 11 societies which have allowed gay marriage. And, the social breakdown must be shown in objective (not ideological) terms—so that “leading society away from God” doesn’t work or “children won’t think correctly about sexual relationships” similarly fails.
The next typical argument regards the best rearing environment for children (i.e. a mother and father). Data show that in jurisdictions which allow gay marriage and civil unions typically show a decline in percentages of traditional marriages. Also, you can cite a number of studies that show better child outcomes for traditional households vs. non-traditional households.
The “child outcomes” argument is going to run into real problems with the “narrowly tailored” and “least restrictive means” elements of the strict scrutiny test. Gay marriages do not naturally result in children. Gay couples to end up rearing children in one of 3 situations: 1) one party had prior hetero relations and have a natural child—and then subsequently won custody rights 2) they adopted a child or 3) they parented a child using artificial insemination. In all of these cases, the LEAST RESTRICTIVE MEANS of preventing these harms would be to restrict child rearing rights of gay couples.
As a practical matter, we all know that if the gays win the marriage issue that they will scream bigotry and prejudice with respect to child rearing restrictions. They’ll get full child rearing rights, too. But, within the confines of constitutional argument, you can’t make this presumption. You would have to address those questions in the separate issues of legal restrictions on child rearing.
The falling marriage rate issue is going to run into big epidemiological and causation problems. On the epidemiological end, you’re going to have to show that the declining rates are due to real changes in behavior in the hetero population and not due to more homosexuals choosing to live in the jurisdictions and more traditionalists leaving. Even if you overcome this problem, you then run into the issue that even if hetero populations make different choices CAUSED by allowing gay marriage, you can argue that you can’t burden gay couples for the free choices of the hetero population.
This “from the hip” view of these arguments lead me to believe that the state doesn’t have the power to ban gay marriage—thus a law banning it means California voters passed a law which the state lacks the constitutional authority to enforce.
So yeah, there’s a very big chance prop 8 could be overturned. Of course, the Supreme Court could frame the question quite differently and come up with a different result.
No, JonJ, you’re speakng ideally, and Maryanne is speaking factually. But it has become worse in our time, than a democratic majority tyrnanny. The Socialist, anti-Church powers have learned how (by evolution of course, what else?) to manipulate the public much more to their liking than their opponents have been able to do. After all, moral people do not go all out to manipulate others, yet immoral people put their all into social manipulation … because they are bored with the emptiness of their lives and can see nothing better to do because they have blinded themselves to reality, truth and love. They spurn the faith the Christ offers them, and this makes them hollow and having nothing but a thirst that they cannot quench. And they take it out on everyone else. If they were average people doing what they do, many of them would be imprisoned for long terms.
Judges, and local, state and national level politicians promote their own moral values.
This is why the election of politicians at all levels of government is very important, as well as the election of judges. (Some judges are appointed by the elected politicians.)
If the “Bishop’s California Catholic Conference” wanted to do a true service for a change, they would print out the positions of each Politician and each Judge – only on the NON-NEGOTIABLES several months prior to each election, and/or appointment.
Non-negotiables are: Abortion; Euthanasia; Same-Sex Marriage; Cloning; Embyonic stem cell research.
(The Bishops should NOT be involved in those things which are legitimately debatable which promote their own political views. This is why they are ignored by many.)
The very fact that those who were supposed to represent the Will of the People of the Sad State of Taxifornia refused to do so is an abomination, and the fact that our so called Courts will use that fact against those who took up the gavel when their so called elected officials (crooks) failed to do so is another grave abomination. May God have mercy on America, once the Land of the Free!
God bless, yours in Their Hearts,
Kenneth M. Fisher
The supreme court will determine that it is a state right’s issue…you wanna get married with a same sex spouse, move to Maine or Maryland, where it’s now legal…of course you still won’t get the perks from the federal government that you would, if it were a federalized matter…don’t think it will though
To reach that result, Taipan, the court would have to decide that restricting the identity of the individual you wish to marry doesn’t impact a fundamental right.
Perhaps you could use an “intent of the framers” approach and say “well, the framers certainly did not intend “free association” to protect gay marriage as a fundamental rights—and then argue that the constitution does not protect gay rights anywhere within its text.
But that approach failed in Lawrence v. Texas (case overturning Texas’ criminal statute against sodomy).
“Identity” is the key concept, JonJ. You should read the works of Blessed John Paul II to find out something about what God has to say on it. If you even were to “get it”, you’d go into shock at how different it is than you ever imagined.
It’s state’s rights…just like the death penalty… the supreme court has better things to do, and much more important things to do, then allow sodomites to legally marry, in all states, with government perks…uh-uh ain’t gonna happen senor
Just because you want a result, doesn’t mean the Supreme Court will give it to you. Studying the legal issues and cases helps you make better predictions, but the court can always analyze the law in a surprising or novel manner.
Given the court’s recent behavior, I think prop 8 is in serious danger. The court, btw, doesn’t share your opinion that it has “better things to do” since it was the Court that “took cert” on the case. The Supremes wouldn’t decide to hear the case unless they considered it an important question of unresolved law.
Prop 8 is in serious danger?…the danger of this proposition is nothing compared to the “danger” that those individual’s place themselves in after they die, who haven chosen to advocate for this shameful/sinful piece of legislation. If a Catholic works/contrives to aid in the passing of this legislation, they may very well be in a grave state of mortal sin…those sodomites who live together and indulge in this perversion are also in a grave state of mortal sin…everything we say and do on this earth has “eternal” consequences…do we serve God, or mammon?…the choice is yours, but that decision may determine where you spend eternity…