Ruth Institute Blog

“they thought the issue was whether the constitution requires same sex marriage. The other side acted as if the issue was whether same sex marriage is good public policy.”

Is this where conservative idealism blinds conservatives to the reality of the activist courts? Going into a courtroom on a hotly contested question with the belief that the constitution will protect your case seems very naive to me.

There are so many Prop 8 supporters who constantly (and often justly) complain about judicial activism. Why then prep for court cases as if the constitution still mattered?

I’m super curious about something. They wouldn’t allow any TV cameras, or any other cameras, in the courtroom. There were some journalists and bloggers, on both sides of the issue, sitting there writing about what they saw. How is that a media circus?

Tyler, good point. Most court cases are open to the public, and people from the media regularly attend court proceedings. And if it is true that the attorneys defending Prop 8 believed that the question before the trial court was whether the Constitution requires same-sex marriage, then that is there mistake. The more appropriate question would be: whether the Constitution permits a denial of the individual fundamental right to marry based on that individual’s sexual orientation. Or, whether a majority may strip a class of individuals of a fundamental right through a public vote. Or even, whether the individual fundamental constitutional right to marry is dependent upon the gender of the individual’s chosen partner. See, the problem with framing the question as whether the Constitution requires same-sex marriage is that it assumes that LGBT persons are seeking some new, as yet unrecognized right to some new institution (i.e., same-sex marriage). We are not. We are merely seeking access to the institution known as marriage, and that we be afforded the same fundamental right to marry that everyone else takes for granted, without reference to our sexual orientation, gender identity, or chosen non-related adult partner.

oops–that is “their” mistake.

Tyler Breisacher :
I’m super curious about something. They wouldn’t allow any TV cameras, or any other cameras, in the courtroom. There were some journalists and bloggers, on both sides of the issue, sitting there writing about what they saw. How is that a media circus?

You’ll doubtless hear from someone here that Judge Walker attempted to allow a video feed of the trial. (Oh, the horror!) True — and this was allowed under a program announced by the 9th Circuit.

You’ll hear that this was an attempt to intimidate witnesses. But the defendants withdrew their witnesses after the video feed was disallowed in the case.

The witnesses were, indeed, intimidated. Not by the trumped up fear of violence, but by their uncomfortable experience in the pre-trial depositions.

As plaintiffs’ attorney David Boies puts it, “The witness stand is a lonely place to lie.” The depositions were video taped (a common practice), and Boies says that the plaintiffs liked their testimony so much that they used some of the tapes during the trial.
.

@Marvin N

Oops. Here’s the corrected URL for the 9th Circuit’s video policy:

http://www.ce9.uscourts.gov/cm/articlefiles/137-Dec17_Cameras_Press Relase.pdf

It was the U.S. Supreme Court that blocked the televising of the trial (in a 5-4 vote). The majority said it was “not expressing any view on whether such trials should be broadcast.” But it said Walker and Chief Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit “did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting.”

This does not bode well for an appeal to the Supreme Court.

It was a media circus because Walker transformed the proceedings of a federal courtroom into a legislative-style fact-finding commission for the purpose of making for Walker the opportunity to perform as a policy-making rather than judgicial role on the national stage. He self-appointed himself in that nonjudicial role.

It was a media circus because Walker chose to set the stage for the nonconstitutional arguments and pleas from the anti-8 side’s plaintiffs and litigants who sought to refight the election campaign they had lost during the campaign that passed the California Marriage Amendment. He openly coached the anti-8 litigators on how to shape and advance their strategy.

It was a media circus because Walker did not treat the opposing litigants fairly. He blatantly used procedural shenanigans to favor the anti-8 side and to rush, without justificaiton, for unprecedented live television coverage.

The judge’s behavior telegraphed that his social policy interests over-rode the constitutional questions of law. As it turns out he made no actual constitutional argument against Prop 8. He did reveal a dogmatic adherence to gay identity politics and, thus, demonstrated his eye was always on superficial performance over substantive constitutional reasoning.

Really Chairm??? Did you read his opinion? He made many constitutional arguments actually citing case law to make his point. I am sick of people claiming otherwise. One of his most compelling arguments was citing the referendum in CA in the late 1960s that voters approved that would have allowed people not to sell their houses to other people solely on the factor of race. It was passed with around the same percentage as Prop 8 was passed. The people had spoken. The funny part is the SCOTUS didn’t see it that way. Just because the people vote for something doesn’t make it legally right or permissible.

He argued for his policy preference.

Tim the following is not a constitutional argument against Prop 8: “Just because the people vote for something doesn’t make it legally right or permissible.”

Just because a judge has a policy preference doesn’t empower him, as a judge, to impose that preference. And dressing up such an imposition with citations that are not really on the constitutional question of law does not disguise the abuse of judicial review.