What the death of Prop 8 means for democracy and the rule of law

ECM messaged me about this post from the Public Discourse. The author is the person who managed to get a constitutional amendment defining marriage in California, only to see if defeated three times by judges.

Federal judge was in a gay relationship:

The Prop 8 challenge landed in the San Francisco federal courtroom of Vaughn Walker. We’re supposed to accept that this happened randomly, and that the plaintiffs weren’t tipped off by someone in the court system to file the case at a particular time when Judge Walker happened to be the one who’d get it.

Whether by accident or grand design, it was a fortunate assignment for the plaintiffs. Walker was a judge in a long-term committed relationship with another man—in other words, he was in exactly the type of relationship as the plaintiffs who were bringing suit. Walker never disclosed this critical fact to Prop 8 supporters, or to the public, despite judicial rules requiring such disclosure if even the appearance of impropriety was present.

Private citizens have to defend the law of the land:

While the lawsuit stood before a hometown judge, state officials did everything in their power to throw the case. Both then-Governor Arnold Schwarzenegger and then-Attorney General Jerry Brown refused to defend the law enacted by the people of California, despite their sworn oath of office to do so. The current Attorney General, Kamala Harris, dutifully took the same course.

Of course, the constitution of California does not give to the governor or the attorney general the power to decide for themselves which laws are constitutional and which are not, nor are they free to determine which laws shall be defended and which shall be abandoned. But no matter.

Having orphaned Prop 8, leaving it and the seven million citizens who enacted it defenseless in court, it fell to the backers of the initiative to defend the law in the federal courts. This not only cost the supporters of Prop 8 over $10 million in legal expenses; it ultimately put a sleeper hold on the initiative.

Ninth Circuit Court of Appeals:

Next the case headed to the Ninth Circuit Court of Appeals, where it became the province of a panel including Stephen Reinhardt, senior judge of the circuit and widely considered to be one of the most liberal (and most overturned) judges in America. I frankly never expected much relief out of what many conservatives ruefully refer to as the “Ninth Circus.” But even I was surprised by the chicanery involved in Reinhardt’s handling of the case.

It turns out that his wife, an attorney with the ACLU, had advised the plaintiffs’ lawyers on strategy before this very case was even filed! Reinhardt refused to recuse himself from deciding the case his wife had participated in, and went on to write a majority opinion finding that Prop 8 was unconstitutional.

And then on the Supreme Court, and we know how that ended.

The conclusion of the piece is very moving, but saddening too.

Here’s part of it:

I feel like we were cheated. Just like I felt as a kid watching the bad guy put a sleeper hold on his opponent, or hitting him below the belt or with the brass knuckles while the referee had his back turned, so have the legal system and politicians cold-cocked the people of California—seven million of whom went to the polls to lawfully enact Prop 8. Only this time, I realize there’s not likely to be a rematch. The cheaters won.

I feel like the rule of law has been shredded, and conniving politicians have been rewarded for ignoring their sworn oath of office. Public confidence in the judicial system has been dealt a severe blow. Supporters of same-sex “marriage” may be happy with the result today, but hold on until the tables are turned and a conservative governor and attorney general refuse to defend a law they don’t personally support, and there’s nobody left with standing to defend it. The seeds of that action will have been sown by leftist politicians like Brown, Harris, and Schwarzenegger.

I feel like a broadside has ripped a great hole in the initiative and referendum process itself. I have managed nearly forty statewide ballot initiative campaigns in my career. The initiative process is one of the few viable ways to get a recalcitrant government to respond to legitimate issues that are not being addressed by the legislature or the state administration. By its nature, citizens are often pushing a law that is opposed by those in power.

Now those very people in power—the governor and attorney general—have been given a pocket veto over the initiative process itself. They can invalidate any measure they don’t personally support simply by refusing to defend it in federal court. Such power was never contemplated by the framers of the constitution, or by the people of California, but that is the practical result of the Supreme Court’s ruling on Prop 8. Again—it is marriage today, but tomorrow it could be any other issue on the political spectrum.

I feel a measure of sadness for all the people who worked so hard for something they believed so passionately—a belief shared by millions of people. Campaigns are about ideas and laws, certainly, but they involve real people.

So I think about people like Scott Eckern, a distinguished musical producer, who was forced to resign from the California Musical Theater in Sacramento over his $1,000 contribution in support of Prop 8. I think about Marjorie Christofferson, a then-67-year-old employee at her family-owned Mexican restaurant in Los Angeles, who was forced to take a leave from the business over donating a mere $100 to our campaign.

I think about the 80,000 people just like them—moms and dads, retirees, students, husbands and wives—who gave generously of their financial resources to allow us to mount a winning campaign. I think about all the pastors, priests, bishops, rabbis, imams, and other religious leaders who put their religious differences aside to work together in support of the eternal truth about marriage—that it is a covenant between one man and one woman, modeled after God’s own covenant with us.

And I think about the 250,000 volunteers in our campaign who walked precincts, knocked on doors, and manned phone banks, including Jose Nunez, a proud immigrant and newly sworn-in US citizen, who was physically assaulted by a Prop 8 opponent while waiting to distribute signs outside his Catholic church.

All of these people paid a tremendous price. They, and the voters, deserved better than to be left undefended before the legal system, abandoned by those sworn to defend them, ignored by judges determined to impose a particular result, and then orphaned by the Supreme Court as the great referee pretended not to see all the nefarious activity going on with the case right in front of them.

I still haven’t really gotten my head around all of the unfairness that happened with the defeat of Prop 8 by leftist lawyers and judges. How can it be that elected officials refuse to defend the law of the land? But this is not just a California issue. The Obama administration also refused to defend DOMA in court.  The amount of money and time that was spent in vain by the pro-marriage team on these legal efforts makes me very unhappy. The Prop 8 campaign involved millions of dollars, thousands of volunteers, and enormous amounts of time spent by everyone. Conservatives can’t take on these Herculean tasks and keep losing. The money and time we spent on defending marriage is gone once it’s gone. It can’t be spent a second time on something else.

We are already living in a time where over 40% of children are being born out-of-wedlock – facing the world without their father, because women choose to take welfare instead of marrying a good man before getting pregnant. We are already living in a world where over 40% of first-time marriages end in divorce, thanks to no-fault divorce laws and anti-male divorce courts. Gay marriage just makes it worse, and that’s the real tragedy. The family is dying, and no one seems to care. No one seems to be aware of the purpose of marriage for society. They are so busy smashing it down that they never stop to ask why it was there in the first place.

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