Ruth Institute Blog

There are a few more podcasts up for your listening pleasure–one from our recent “It Takes a Family” conference, and the other two are interviews of Dr J on Issues, Etc.

Dr J gave the opening talk at ITAF 2010; entitled Marriage and Freedom in Society, it discusses what marriage does for society and some of the consequences (especially those relating to children) if we choose to dissolve or weaken it.  Some of the areas she covers include divorce law, state intervention, and parenthood.

The two Issues, Etc interviews discuss the response to Judge Walker’s attitude about the Prop 8 case (Shot in the Arm…or the Foot?) and another group of Mama Grizzlies, this one opposed to Sarah Palin (Sarah Palin vs. Mama Grizzlies).  Dr J’s exposition on the arrogance of both subjects is excellent.

More news sent to me by Leo:

Originally I dismissed the idea of recusal by Judge Walker, but this piece makes a strong legal case.

http://articles.sfgate.com/2010-08-11/opinion/22213940_1_parties-judge-walker-new-trial
It reads in part

The political philosopher John Locke noted in his Second Treatise on Civil Government that “it is unreasonable for men to be judges in their own cases (because) self-love will make men partial to themselves and their friends.” That sentiment, undoubtedly true, is actually codified in federal law. A judge is required to disqualify himself in any proceeding “in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which: (a) the judge has … personal knowledge of disputed evidentiary facts concerning the proceeding; [or] … (c) the judge knows that the judge … has a financial … or any other interest that could be affected substantially by the outcome of the proceeding.” Read more…

by Sheila Liaugminas

After declaring a California voter initiative wrongly passed because he disagreed with the citizens’ conclusion, Judge Vaughn Walker took it upon himself to declare anyone who disagreed with him ineligible to appeal to a higher court. Case closed, he thought. He was wrong. Read more…

Ed Whelan at the NRO Bench Memos provides the best analysis of Judge Walker’s overreach in his overturn of Prop 8. Today, Ed discusses the significance of the Ninth Circuit’s Stay order in the case. In case you missed the news, Judge Walker had originally ordered that same sex marriages begin immediately. The Proponents of Prop 8 asked him for a “stay,” until the appeals process is completed. Judge Walker issued a stay for 6 days. When the Proponents appealled that decision, the Ninth Circuit agreed with them, and ordered a stay, and expedited the case. Oral arguments will begin the week of December 6th.
Here is some of what Ed has to say:

The Ninth Circuit’s grant of a stay of Judge Walker’s judgment pending appeal provides yet further compelling evidence that Walker has gone utterly bonkers in his egregious mishandling of this case. Walker’s denial of the stay threatened to dramatically alter the status quo before a higher court could even review his radical ruling. Read more…

(August 11, 2010) Dr J appears on radio program Point of View, where she and host Penna Dexter discuss Judge Walker’s recent Proposition 8 ruling.

Point of View

Oh boy. Here we go.

by Walter R. Schumm

The evidence shows that gay marriage is equal to or better than traditional marriage, according to a Federal Court judge. But what sort of evidence?

In one sense, Judge Walker can’t be blamed for his decision since he was provided a great deal of inaccurate and incomplete information through the trial process. I hope that future amicus briefs will be able to correct those deficiencies. Read more…

What do you all think about this article?

by Frank Turek

When one judge overturned the will of more than seven million Californians last week in Perry v. Schwarzenegger, he listed 80 supposed “findings of fact” (FF) as evidence that Proposition 8 violates the Fourteenth Amendment of the United States Constitution. Many of those 80 findings are not facts at all. They’re lies or distortions. Read more…

Robert George is on the Hugh Hewitt show right now, with Timothy George and Chuck Colson, talking about the Prop 8 Overturn and the Manhattan Declaration.
Push the “Listen Live” button.

Fox News has a poll on the Prop 8 Overturn. It is worded in an odd way, to give opponents two ways to answer, thus possibly skewing the results.
Still, this very non-scientific poll creates the impression that no one cares about the Overturn and that same sex marriage is inevitable.
Go take it. suggest it to your friends.

I have been reading lots of disappointed commentary about the defense of Prop 8. “If only we had a better defense team, more witnesses, better witnesses, etc.” I have had people contact me telling me they wish I had testified. Others write to volunteer their services in Public Relations, Advertizing or even Lawyering.
What I take from all this is that a) people are frustrated and b) people want to Do Something to help.
I understand. Really I do. And I appreciate the confidence that people are showing in me by asking these questions, and suggesting that I would have done better on the stand.
But just as a matter of professional courtesy and Christian humility, I am unwilling to second guess the attorneys or the expert witnesses. After beginning to read Judge Walker’s opinion this morning, I am even less willing to second guess the Protect Marriage team. In particular, I have a renewed respect for David Blankenhorn, the one witness the Proponents of Prop 8 called to testify on the social purpose of marriage. Read more…

By Patrick McIlheran of the Journal Sentinel

Let’s look at how the gay-marriage thing in California has unfolded so far:

The state’s Supreme Court in 2008, on a one-vote margin, decides to redefine marriage to dump one key parameter that had always and everywhere in human history been part of marriage: that it be between complementary sexes, not identical ones.

Within months, the voters of the state overrule the court, amending their constitution to say that, no, you can’t redefine basic social institutions against the will of the people. The losers sue the state.

And Wednesday, a federal judge – a judge, as in one – overrules the people, ruling, among other things, that “gender no longer forms an essential part of marriage.” It doesn’t? Read more…

I am hearing this question alot. I don’t think they did, for this reason: 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. The Protect Marriage Lawyers thought all that stuff that took up so much media attention was a media sideshow, not relevant to the issue at hand.
The Dean of UC Davis law school explains that this may actually be correct.

But in the end, the big analytic moves in Walker’s ruling – that same-sex couples seek to invoke rather than alter the right to marriage, that incrementalism and cautiousness in public policy change are not inherently “rational” under the Constitution, that gays and lesbians need special judicial protection from discrimination – are all legal conclusions, and the Ninth Circuit will decide these questions for itself, without giving Walker’s determinations much formal deference.

In other words, Judge Walker’s “Findings of Fact” may not fool the Ninth Circuit into thinking that they cannot reopen any of the questions he labeled as established fact. The Ninth Circuit, (and the Supreme Court, if the case ends up there,) may just be annoyed at the high-handedness of Judge Walker, and along with the way he allowed his courtroom to be turned into a media circus.

We shall see.

Associate dean and professor at the UC Davis School of Law, Vikram Amar, predicts that Prop 8 will ultimately be decided in the Ninth Circuit, not at the Supreme Court:

If the Ninth Circuit reverses Judge Walker’s ruling and upholds Prop. 8, I think it improbable that the Supreme Court would grant the plaintiffs’ request to accept review. The two primary reasons the high court takes cases are:

– A disagreement among the lower courts on how to resolve a recurring legal question.

– An earth-shattering need to answer a major legal question right now.

Neither would apply here. There would be no conflict among the lower courts on the question of a federal right to gay marriage (no judge other than Walker has yet embraced one), and upholding Prop. 8 doesn’t change the world in the way that requires the court to weigh in immediately.

The Supreme Court justices (both conservatives and liberals) would, I suspect, be quite content to let the issue “percolate” in the lower courts – and state ballot boxes – for a while before deciding to address it.

The likelihood of Supreme Court review goes up a lot if the Ninth Circuit invalidates Prop. 8 on the broad grounds embraced by Walker – that all same-sex adult couples have a federal right to enter into marriage, period. Such a ruling would recognize a constitutional right in the western states (those covered by the Ninth Circuit – Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) that hasn’t been recognized elsewhere; under those circumstances, the justices would have a hard time deferring the issue.

What are the odds of the Ninth Circuit reversing Walker? They did it twice already in motions leading up to the Prop 8. Reason for hope?

Kathleen McKinley proposes a compromise on the issue of marriage redefinition in her article “The Gay Marriage Compromise.”

I can promise you that if Prop 8 were voted on tomorrow, and the exact same language was used, but instead the word “marriage” was replaced with the words “civil unions,” it would pass. And most everyone would be fine with it. As some other guy, not as well known as Kinky once said, “What’s in a name? That which we call a rose by any other name would smell as sweet.” Read more…

Pastor Jim Garlow’s personal and public statement on the Prop 8 Overturn includes this gem:

We would have wished the judge would have looked at the first three words of the U.S. Constitution, “We the People.” There’s a reason why that document does not begin with the words, “I the Judge.”

Whether you think same sex marriage is good policy or bad policy, judicial imposition can’t possibly be a good thing. The public policy aspects of same sex marriage were thoroughly vetted over the course of a very expensive campaign.

From RealClearPolitics:

But for Judge Walker there is an odor of illegitimacy about merely “moral” views expressed in legislation, especially when morality finds support in religion. Thus he declares that Proposition 8 expresses only a “private moral choice,” not a considered public morality. And thus in his tendentious “findings of fact,” he makes the astonishing claim-purporting to be a fact found at trial, not a judgment of his own-that “religious beliefs that gay and lesbian relationships are sinful . . . harm gays and lesbians.”

Perhaps here, in this nadir of absurdity, we have found the real fundament of the judge’s thinking. Citizens who wish to defend the institution of marriage as they and their families have known it all their lives, and for countless generations, are irrational bigots. Worse still, if they are moved to act because of the union of their faith with their moral opinions, they are crazy religious folk, bent only on harming others whom they merely “dislike” on grounds that cannot possibly be defended before a tribunal of right-thinking people. And those others, the same-sex-couple plaintiffs? They must be rescued from the “harm” to their feelings that results from their exclusion from a historic civil and moral institution that has never hitherto been thought to have been built for them.

The bludgeoning going on here in the name of “tolerance” and “equality” is amazing.  Read the whole thing here.

Michael Medved has an opinion piece worth reading over at AOLnews.com on the recent Prop 8 ruling.  I think the 7 points he makes are very well-stated and cogent to the discussion.

1. “Proposition 8 was a mean-spirited ban on gay marriage.”
Proposition 8 banned nothing. The ubiquitous headlines describing this voter-mandated change in the California Constitution as a “gay marriage ban” amount to an egregious example of journalistic malpractice. The entire proposition consisted of only 14 words: “Only marriage between a man and a woman is valid or recognized in California.” This simple statement imposes no restrictions and issues no commands regarding the behavior of private citizens; it merely demands a change in the actions of government. Proposition 8 did nothing to interfere with gay couples in registering for state-recognized civil unions, participating in church ceremonies consecrating their love, forming lifetime commitments, raising children or concluding comprehensive contractual arrangement to share all aspects of life and property. The proposition simply says that government will not get involved in any of these private or public processes by calling such relationships a marriage.

2. “Proposition 8 singled out gays and lesbians for discriminatory treatment.”
The proposition never mentioned gays, lesbians or any other individuals, whatever their sexual orientation. It didn’t discriminate among individuals; it drew distinctions among relationships. Under the proposition, a gay male and a straight male would face exactly the same options in marriage; there is no relationship open to the straight citizen that’s denied to his gay neighbor. The fact that gay people want government sanction for a different sort of relationship, creating radically new forms of marriage, reflects their desire to transform institution, not a demand for equal, long-established rights.

Read more…

You will recall that I claimed in my AOL News article that the Essential Public Purpose of Marriage is to attach mothers and fathers to their children and to one another. Some people dispute this by pointing to alternative purposes of marriage, or by discovering groups of individuals who seem not to be participating in this public purpose. I deal with some (but admittedly not all) of those cases in this podcast.
Here is the purpose of marriage as outlined in Judge Walker’s opinion. He quotes a Harvard historian, with approval, who offers this alternative understanding of the purpose of marriage:

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.”

I would issue this challenge to those who take issue with my characterization of the Essential Public Purpose of Marriage. How would this definition exclude college roommates? Read more…

A reader posted my AOL New article on her facebookpage and got this response from a friend:

I see multiple problems with her argument,
1. She does not mention divorce, which has already ‘redefined marriage.’ Divorce rates in our nation have been hovering around 50% for quite some time, and divorce can be very detrimental to children involved.
2. There are some heterosexual couples who are physically unable to bear children. As far as reproduction is concerned, they are in the same category as homosexual couples. Both of theses couples can adopt children, yet no one questions the ‘parental status’ of heterosexual parents who adopt.
3. There are many married couples who choose not to have children, so saying that the ‘essential purpose of marriage is to attach mothers and fathers to their children’ is an exaggeration that remains unsupported by empirical evidence.
4. In some cultures and ethnic groups, marriage rates are decreasing and couples choose to cohabit instead. These groups have already ‘gotten rid of marriage’ and they are not seeing an adverse effects.
I’m more inclined to agree with the comment on the article from Ken, and I’m very glad prop 8 was overruled; however, I do appreciate this woman’s attempt to provide non-religious argument against gay marriage…

I had a limit of 650 words for that column, so obviously I cannot deal with every possible objection. So let me briefly amplify my remarks, mostly to say that I have dealt with many of these issues multiple times.
1. On divorce. I write about divorce regularly. In fact, divorce was one of the first issues that got me into the study of marriage and family. I have a couple of recent podcasts, here and here. My books, Love and Economics, and Smart Sex, both deal with the whole range of marital breakdowns, without ever once refering to same sex marriage. Read more…