Ruth Institute Blog

In today’s hearing, I will be watching for the Marriage Redefiners to try to distinguish their case. That is, will they try to come up with some argument that distinguishes the Proponents of Prop 8 from Proponents of other potential ballot initiatives.  If they make no attempt to do that, we might conclude that they don’t care whether they destroy the initiative process. They just want what they want, and they don’t care about collateral damage.

On the other hand, if they do make an effort to limit the impact of their request to Prop 8 and only Prop 8, that would at least show some good faith on their part.

I will be watching.

I have been told by a veteran of these hearings that I may be asked to give up my electronics before entering the courtroom.  In that case, I will have to file my posts later.  The hearing begins at 10 AM Pacific Time, and will probably run through noon. 

Watch this space….

I am in San Francisco today, observing the Prop 8 hearing on behalf of NOM. The issue in today’s hearing is standing: who has standing to defend Prop 8 in court against legal attacks.

This issue is significant for several reasons. First, the State of CA has the responsibility of defending its laws in court. That’s right: Proposition 8 is a duly enacted law of the State of CA. The people passed this initiative in a highly visible election that was not even a close call, 51% to 49%, approximately the same percentage of the vote that elected Barack Obama President of the United States.

Second, the elected officials charged with this duty, the Attorney General and the Governor, have consistently refused to perform their constitutional duty. They only enforce the parts of the law they like, I guess. Read more…

Proposition 8′s sponsors will be in court Monday morning to argue whether Judge Walker’s decision to overturn Prop 8 should be vacated on the basis that the long term same-sex relationship he is involved in (and was involved in at the time of the Prop 8 trial, but failed to disclose) constitutes a conflict of interest.

If you want to follow the hearing, and don’t mind going to the website of one of Prop 8′s opponents to do so, then you can find live updates at http://www.afer.org/june13 starting at 9:00am.

The on-going drama of Prop 8. The opponents of Prop 8 are willing to gut the state’s voter initiative process in order to defend the same sex “marriage” decision imposed on the state by the Supreme Court back in 2008.  Let’s see: the State Supreme Court overturned a citizens’ legislative initiative and declared the male/female requirement for marriage to be unconstitutional.  So, the people used the initiative process and passed a constitutional amendment.  The purpose of the initiative process is to allow the citizens some redress against the government, when they believe the govt is out of control.

Now, the opponents of Prop 8 challenge the amendment in court.  The Powers That Be in the State of CA refuse to defend Prop 8 in court.  The Attorney General, herself a charter member of The Powers That Be, has declared that the proponents of the initiative do not have standing to defend Prop 8 in court.  By this reasoning, all the Powers That Be have to do is to lodge a challenge to an initiative and the initiative becomes void because no one has the right to defend it.  By my reckoning, that pretty much guts the initiative process.  Let’s look at the AG’s reasoning: Read more…

WASHINGTON – The 9th Circuit Court today announced it would not lift its stay on Judge Vaughn Walker’s decision overturning Proposition 8. The National Organization for Marriage (NOM) applauded the decision.

“This is good news for the people of California–and congratulations to the Dream Team of David Boies and Ted Olson for continuing their impressive streak of losses in actions not in Judge Walker’s courtroom,” said Brian Brown, president of NOM. Read more…

When the so-called ‘justices’ of the California Supreme Court, in their ruling overturning Proposition 22, commanded the State to recognize same-sex ‘marriages’ immediately – in the face of warnings that those ‘marriages’ would be be the source of enormous legal confusion when Proposition 8 passed – it was a case of the judiciary attempting to deny the people their right to self-rule (Proposition 22 passed by 61%) and it was a very transparent attempt to influence the outcome of Proposition 8, and it was an obvious attempt to make the will of the people utterly irrelevant anyway by making same-sex so-called ‘marriage’ a fait accompli irrespective of any constitutional requirements. Read more…

I expect that Chuck Cooper will defend the voters of California against the truly scurrilous attack made by Olsen and Boies and repeated by Judge Walker. The plaintiffs complained about the advertising used during the campaign. I was shocked the first time I heard this complaint. They couldn’t find anything explicitly “homophobic” in the campaign ads. So they drew inferences about the intent of the voters, from subliminal messages that they imagined the voters must have been really responding to. Here is what Cooper said in his motion to appeal about “inferring” voter intent. (pp 60-61)

The district court thus erred as a matter of law in drawing the “inference” that Proposition 8 was motivated solely by an irrational and bigoted “fear or unarticulated dislike of same-sex couples” or by the “belief that same-sex couples simply are not as good as opposite-sex couples.”

At any rate, the inference of anti-gay hostility drawn by the district court is manifestly false. It defames more than seven million California voters as homophobic, a cruelly ironic charge given that California has enacted some of the Nation’s most progressive and sweeping gay-rights protections, including creation of a parallel institution, domestic partnerships, affording same-sex couples all the benefits and obligations of marriage….

The district court’s “inference” regarding the subjective motivations of seven million Californians is based on a tendentious description of no more than a handful of the cacophony of messages, for and against Proposition 8, that were before the electorate during the hard fought and often heated initiative campaign.

See what I mean? He is sticking up for the voters. He had to so so, because the opponents of Prop 8 have impugned the motives of millions of California voters, and the millions of other Americans who agree with them in supporting the principle that marriage is the union of one man and one woman.

Our sister organization, the National organization for Marriage has an outstanding set of resources for following Prop 8. There is a case timeline here. And they have a list of links to important case documents here, including many amincus briefs.

Chuck Cooper, lead attorney for the defense of Proposition 8, will surely make a big deal out of the sloppy reasoning of Judge Walker’s opinion. He will certainly point out that there are numerous cases at the state and federal level, which are precedents for the same sex marriage issue. These cases hold that there is no federal right to same sex marriage.
A good lawyerly practice is to list all the relevant precedents and distinguish them from your own case. In other words, Olsen and Boies should have explained why those cases are different from the Prop 8 case, so that those existing should be set aside to make way for the new finding that the US Constitution requires same sex marriage.
Olsen and Boies didn’t do that. Judge Walker didn’t do that. They didn’t even mention Baker v Nelson, Adams v Howerton and a host of state and district court rulings around the country.
As Cooper said in his motion to appeal, “Given that the district court did not cite a single case that had addressed these issues, one might thing the court was deciding issues of first impression on a blank slate. Nothing could be further from the truth…. The sheer weight of authority opposed to the district court’s decisions further confirms that the decision will likely be reversed on appeal.”

The Prop 8 legal defense team has taken a beating in public debate. But the MSM, in the person of Washington Post reporter Lisa Leff (finally) start asking the right questions. What was the point, if any, of all the expert testimony presented in the original Prop 8 case? Our side says it was basically pointless, from a legal point of view, and merely for public relations purposes. Reporter Leff found some commentators who see the point:
Eugene Volokh, a UCLA law school professor whose popular legal-affairs blog was inundated with comments from observers critical of the defense’s trial performance, said, “If the question is whether they should have introduced more witnesses at trial, I’m skeptical it would have done any good. It certainly wasn’t necessary, and I’m not sure it would have been at all helpful.”
And University of Pittsburgh law professor Arthur Hellman said that the mere number of witnesses called by each side is unlikely to be decisive in any event. “It is unlikely the court would consider itself bound and limited by what happened in the district court, that it could not go beyond the trial record,” he said.

Skinner v. Oklahoma is one of the standard cases cited in defense of the “fundamental right to marry.” In this 1942 case, the Court stated, “We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.”

The facts of this case have nothing to do with marriage. Skinner stands for the idea that procreation is a central feature of marriage. Hence, Skinner supports natural marriage, not same sex marriage.

Mr. Skinner had been convicted of 3 felonies: two counts of armed robbery, one count of chicken theft. Under Oklahoma’s Habitual Criminal Sterilization Act, these three felony convictions were sufficient for the state to sterilize him as a habitual criminal.

The state of OK did not propose to prohibit Mr. Skinner from ever getting married, only to render him incapable of ever siring children. Marriage was so closely linked to procreation in the Court’s view, that rendering him sterile presented a serious barrier to him ever marrying.

The Court did not say what the advocates of same sex marriage imply that it said: that Mr. Skinner had the right to marry anyone he wanted.

What the court did plainly imply is that marriage and procreation are tightly linked, both in experience and in logic. By sterilizing Mr. Skinner, the state of Oklahoma would make him “damaged goods” and unlikely to succeed in finding a marriage partner for himself.

Hence, this case really stands for an understanding of marriage that links marriage, sex and procreation. Skinner v Oklahoma took this position for granted. This case supports natural marriage.

In this day of US Courts following European Courts, here comes an interesting story from the European Court of Human Rights:
“The European Court of Human Rights has refused permission to appeal in a challenge to the ban on gay marriage in Austria. The effect of the decision is to make the court’s rejection of the same-sex couple’s claim final.”

(Me: The European Court of Human Rights is unwilling to impose same sex marriage upon reluctant member states of the EU. Will the Ninth Circuit show the same courtesy to U.S. States?)
Read more…

Apparently the 9th ‘Circus’ Court of Appeals has decided to allow C-SPAN to televise oral arguments for the Prop 8 case.

So what’s the verdict on the blog? Will it create the show-trial atmosphere that the ‘law’ firm of Olson, Boise, Walker & Associates wanted all along? Or will broadcasting, for the whole world to see, the utterly specious arguments and antics they engaged in during the original trial just end up backfiring on them?

Ed Whelan filed an amicus brief in the Prop 8 case, on behalf of the Ethics and Public Policy Center. RRR’s have seen some of his arguments already in this space. He explodes the contention that the Prop 8 defense team “didn’t provide any evidence.” And in fact shows pretty clearly that Judge Walker echoed the plaintiffs PR arguments. But let me cut directly to Whelan’s bottom line:

What can possibly account for the remarkable series of errors discussed in this brief? Simple incompetence is not a plausible explanation. For starters, the district judge is very experienced and generally well regarded. Further, the thoroughly one-sided nature of the errors is inconsistent with the random pattern that incompetence would generate.

We respectfully submit that the inescapable explanation for the district judge’s performance in this case is that he harbors a deep-seated animus against traditional marriage and that he has been unwilling or unable to contain his animus. That understanding ought to inform this Court’s entire review of the district judge’s ruling.

Read more…

From Brian Brown, Executive Director of National Organization for Marriage (NOM)

The Prop 8 legal defense team has filed their opening brief with the Ninth Circuit Court of Appeals in the Perry v. Schwarzenegger case, and it is a tour de force.

Authored by chief Prop 8 litigator Chuck Cooper, the 100+ page brief shreds the decision of federal district court Judge Vaughn Walker, and lays bare all the legal, logical, and factual errors that Walker made in his ruling. Read it here. Read more…

I’m not a lawyer, so I never knew what “legislative facts” were. But it seems that “legislative facts” are the kind of facts relevant to a trial like the Prop 8 trial. What is the significance of this? People (including Judge Walker) chide the Prop 8 legal defense team for not bringing enough “expert witnesses.” This overlooks the fact that many kinds of evidence count as “legislative facts” and that expert testimony is typically not the major sort of evidence presented as “legislative facts.” Here is Chuck Cooper’s explanation in the “Motion for Stay Pending Appeal.” If I’m misunderstanding legislative facts, I hope some of our lawyer peeps will straighten me out.

To read the district court’s confident though often startling factual pronouncements, one would think that reasonable minds simply cannot differ on the key legislative facts implicated by this case. However, the district court simply ignored virtually everything—judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive documentary and historical evidence, and even simply common sense—opposed to its conclusions. Indeed, even though this case implicates quintessential legislative facts Read more…

He didn’t say a word about the origins of same sex attraction. There was not a single witness who provided scientific evidence for the claim that same sex attraction is a genetically determined, immutable trait. Instead, he relied on reports of personal experiences to suggest (but not prove) that “gays and lesbians are the type of minority strict scrutiny was designed to protect.” (pg 121.)
Below, I list the plaintiffs’ expert witnesses. Not a single one has the slightest expertise in the origins of same sex attraction. Please notice: the defenders of same sex marriage are backing away from the claim that sexual orientation is a genetically determined, immutable trait, because that claim has no scientific basis whatsoever. Read more…

Sherlock Holmes once famously said, “Watson, I call to your attention the curious fact of the dog barking in the night.” “But Holmes, there was no dog barking in the night.” “That is the curious fact.”
It is a curious fact that Judge Walker did not discuss any of the previous cases that deal with the constitutional questions before him. Chuck Cooper puts it this way, in his Emergency Motion seeking a stay of Judge Walker’s judgement invalidating Prop 8:

“Given that the district court did not cite a single case that had addressed these issues, one might think the court was deciding issues of first impression on a blank slate. Nothing could be further from the truth. Read more…

Far from it. Chuck Cooper is the lead attorney defending Prop 8. Judge Walker’s opinion created the impression that the Prop 8 defense team had not presented any evidence and had basically done a rotten job. The MSM, naturally, has continued to dutifully carry this message to the public, to the point that even supporters of Prop 8 have been angry, thinking that our side dropped the ball.
I have been reading documents relating to the case. Chuck Cooper is not an idiot. He did not drop the ball. He presented tons of good arguments and evidence.
Judge Walker ignored it. Judge Walker’s opinion is the sole basis for the claim that Cooper did a bad job.
This is not sufficient reason for our peeps to panic or to pile on Chuck Cooper and the Prop 8 legal defense team. I will be posting info from the trial documents. You can draw your own conclusions.