Judge Walker, Proposition 8 and the Judicial Usurpation of Democracy

For some thoughts on the recent decision by a single federal judge to undo the decision of the people of California, see this opinion by Rick Santorum posted on Wed, Feb. 10, 2010 philly.com The Honorable Rick Santorum will be hosted by the Pope John Paul II Forum on September 9, 2010; see website for details (jp2forum.org)

See also the analysis of the trend towards the “Judicial Usurpation of Democracy” in First Things, click here. Article by my brother F R Hittinger is particularly cogent, I suggest with some favoritism.

Rick Santorum wrote the following: “Kids need a mom and a dad. Californians who think the state’s marriage law should reflect this deeply held belief were forced to appeal directly to the people, with a 2008 referendum to overturn a state Supreme Court decision legalizing same-sex marriage. Proposition 8, an amendment to the state constitution defining marriage as being between one man and one woman, passed easily.

The reaction of some Prop 8 opponents – the self-proclaimed champions of tolerance – was swift and fierce. They moved to harass and persecute Prop 8 supporters. Groups such as the misnamed “Californians Against Hate” published blacklists of Prop 8 backers that included supporters’ names and addresses. Prop 8 advocates became the target of harassing protests, phone calls, e-mails, and mailings.

A flier distributed in one town featured a photo of one Prop 8 backer, his name, the amount of his donation, and the name of his (Catholic) church. Next to his photo was the word “Bigot.” Some Prop 8 campaign donors had to resign from their jobs or take leaves of absence to protect their employers and colleagues. Top officials of California Musical Theatre and the LosAngeles Film Festival were forced to resign just because they had donated in support of Prop 8.

That wasn’t all. These warriors for the oppressed also made a point of going after pro-Prop 8 Mormons and their church. While this ugliness was exploding across California, the anti-Prop 8 forces also ran to the state courts to overturn the people’s will. They claimed – get this – that the amendment to the state constitution violated the state constitution. But not even a state Supreme Court with a habit of rewriting the constitution would accept this illogical absurdity. It upheld Prop 8. If the reliably progressive activists on the state Supreme Court couldn’t be counted on, where to go? How about going before a sympathetic federal district court judge in San Francisco to challenge Prop 8 as violating the U.S. Constitution? Federal Judge Vaughn Walker has accepted the Prop 8 opponents’ assertion that constitutionality hinges on the attitudes of voters, not legal arguments and precedents. So he has consistently ruled in their favor, turning this trial into another instance of harassment of Prop 8 supporters.

Consider Walker’s precedent-breaking rulings in the trial, which began last month:

  • He decided that Prop 8 proponents should be subjected to questioning about their personal beliefs on marriage and sexuality.
  • He ordered Prop 8 proponents to disclose private communications about never-used campaign messages.
  • He directed the Prop 8 campaign to turn over copies of all internal records and e-mail messages on campaign strategy.
  • He refused not only to demand any of these things of the proposition’s opponents, but also to so much as rule on a motion related to that issue.
  • He subjected one proponent to humiliation for his concerns about homosexuality, as written in private e-mails to friends – in Chinese.
  • He allowed witnesses for opponents of the proposition to air their “expert” opinions that homosexuals have been discriminated against, that they feel bad when society does not validate their relationships, and that the passage of Prop 8 echoed historical bigotry foisted on society by religious zealots.
  • He even allowed one witness to testify that his parents tried to change his sexual orientation.

The witness was a gay Colorado man who had never lived in California or been exposed to any Proposition 8 campaign messages. In light of the campaign of harassment and intimidation of Prop 8 proponents, Walker’s most contemptible ruling would have had this show trial broadcast worldwide. The U.S. Supreme Court found he probably violated court rules in his attempt to take part in a “pilot project” allowing cameras in the courtroom. The Supreme Court blocked the effort, but by then Prop 8 supporters had lost two-thirds of their expert witnesses, who feared they would be harassed and blacklisted. California’s voters have spoken. The only point of Walker’s rigged trial is to convince appellate courts that voters who passed Proposition 8 are intolerant bigots. But an honest look at the behavior of both sides over the past year tells a very different story.”

For opinion by Professor Robert George on this recent decision — click here (WSJ) and here(NR).

1 Comment
  1. great post, John … this helped clarify several key points for me … keep up the great work! Jerry

    Gerard S Brungardt MD BeL

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