It was this morning’s top headline: “Ban on gay marriage overturned.” I expected that. The Los Angeles Times article [updated 7:42 a.m.] reviewed much of the same ground that yesterday’s on-line commentaries did. I have already downloaded the decision and read the back-end completely, from page 109–136, so I’m already somewhat familiar with Judge Walker’s careful legal reasoning in dispensing the Pro-Prop 8 arguments one by one under the Due Process and Equal Protection clauses of the federal 14th Amendment.
After dispensing with other pro-prejudice arguments (two moms or two dads aren’t good for the children, etc.), and underlining the complete lack of supporting evidence for those arguments, Judge Walker concludes that the State of California has no compelling reason to deny lesbian and gay couples the fundamental legal right of marriage. “The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples,” he wrote.
Still, it is interesting to see what others have to say about the quality of the decision, especially authoritative minds. Shannon Price Minter was quoted in the Times, for example. She is the legal director for the National Center for Lesbian Rights (NCLR) a major player in the larger LGBT movement for many years. Said Minter: “This is a tour de force—a grand slam on every count. This is without a doubt a game-changing ruling.”
(The game that changes is because of a judicial ruling which goes beyond the close-in arguments about the meaning and scope of civil marriage, to rather help build a case in support of full equality before the law for sexual minorities.)
It did not surprise me that the defense counsel had little to say–the guys hired to defend the constitutionality of Proposition 8. At least in what they were quoted a saying, there was no counter-argument (e.g. that Judge Walker had erred in legal reasoning, that there is solid evidence that gay marriage will wreck heterosexual marriage, damage children, destroy the institution and sink the State of California, etc.) except the one which attempts to stoke right-wing indignation: How dare the judge decide against the 52.3% majority of voters who [having been intentionally mislead in the fall of 2008 by a blitzkrieg of anti-gay advertising paid for largely by members of the Mormon religion] said they don’t like gay or lesbian couples. The Times quotes Andrew Pugno (General Counsel for Protect Marriage) as saying that Walker’s “invalidation of the votes of over 7 million Californians violates binding legal precedent and short-circuits the democratic process.” The Alliance Defense Fund is calling Judge Walker’s ruling “dangerous.”
(Pugno has a tendency to puff and bluff, which is understandable because that is the posture of the organization which pays him. For example, this is what Pugno said about the lawsuit filed the day after Prop 8′s passage by the ACLU and Equality California: “The lawsuit filed today by the ACLU and Equality California seeking to invalidate the decision of California voters to enshrine traditional marriage in California’s constitution is frivolous and regrettable. These same groups filed an identical case with the California Supreme Court months ago, which was summarily dismissed. We will vigorously defend the People’s decision to enact Proposition 8.” As it turned out, the arguments advanced against Proposition 8 are certainly not frivolous, and Pugno’s “vigorous defense,” at least in Judge Walker’s court room, turned out to be a total dud.)
On “being intentionally misled” I think Protect Marriage sums it up for me:
“In the campaign, voters were told clearly that voting YES on Proposition 8 would do 3 simple things: . . .
• It would protect our children from being taught in public schools that ‘same-sex marriage’ is the same as traditional marriage, and would prevent other consequences to Californians who will be forced to not just be tolerant of gay lifestyles, but face mandatory compliance regardless of their personal beliefs.”
And binding legal precedent
is a valid concept. But it generally means that lower courts must abide by the decisions of higher courts
. The whole concept of judicial review, which has been with this American republic for two centuries, is meant to, yes, have the authority to overturn legislation—whether written by elected lawmakers or by the initiative process—which is inconsistent with and in conflict with America’s highest principles. That’s what declaring a law “unconstitutional” is all about. The pro-Prop 8 attorneys, by the way, failed
in Judge Walker’s courtroom to demonstrate that there is binding legal precedent for forbidding same-sex couples to have civil marital rights. For example, here is the Protect Marriage blog page for Pugno’s Closing Argument
before Judge Walker 7 weeks ago:
Hmmm. Whether pugnacious Pugno’s whimper has any muscle remains to seen. Judge Walker has given the defense counsel until tomorrow, August 6, to submit more papers for a follow-up hearing about whether Walker’s Order should be “stayed” until the 9th Circuit Court of Appeals has a chance to consider it. According to Times writers Maura Dolan and Carol Williams, “To win a permanent stay pending appeal, Proposition 8 proponents must show that they are likely to prevail in the long run and that there would be irreparable harm if the ban is not enforced.”
Meaning: the don’t-like-gay-marriage side must immediately convince Walker and/or the 9th Circuit that when all the legal dust has settled, the anti-gay view will have won; and that permitting any more same-sex marriages in the meantime would cause “irreparable harm.”
The second half of this is easier for non-experts to analyze. For starters, can attorney Pugno prevent evidence now (that he couldn’t produce during the trial phase) showing that there was irreparable harm caused by the existing marriages of some 18,000 same-sex couples who wed between June and November, 2008? I don’t think so.
The first half is of course open to much debate. Will the anti-gay forces ultimately win? A lot of commentators still fear that the United States Supreme Court, if and when this case comes before them, and if they choose to review it, is so conservative it will make a decision that reinforces anti-gay prejudice in America for many years to come. That’s mostly a political guess based on attitudes which can and do shift. For example, the Lawrence v. Texas decision (2003) which decriminalized consensual sexual activity between persons of the same gender surprised many of us because we thought the right-leaning Supremes would echo the reactionary Bowers v. Hardwick decision (1986), a grossly prejudicial decision even for the times.
I can’t speak to the legal procedural issues on this, but it would seem to me that Pugno and his forces can’t argue for a “permanent stay” of Walker’s ruling on the assumptions that (a) this case will one day be appealed to the U.S. Supreme Court, (b) that they will accept the case, which they don’t have to do, and (c) that they will overturn the lower court. What comes in between is the 9th Circuit Court of Appeals, a noticeably more liberal court that could very much agree with Judge Walker’s legal conclusions.
So my suspicions are that Pugno and company (Texas attorney Austin Nimrocks representing the Alliance Defense Fund is another attorney being quoted, but there were a total of 11 attorneys listed on the Closing Arguments filing) will not be able to get a “permanent stay” against the Walker decision until the appeal process winds through the 9th Circuit Court–which could take a year or two. This would mean that Walker’s Order (on page 136) would have to be given full force—Proposition 8 would not be enforceable and marriage licenses would begin to be issued again for same-sex couples. We should have an answer to this within days.
The Christian reactionary Alliance Defense Fund (founded by leaders of Campus Crusade for Christ, Focus on the Family and Coral Ridge Ministries among others), you will remember, is also opposed to hate crimes legislation. ADF also seems quite nervous about the Walker decision, if its website is any indicator, especially about the apparent intentions of the American Bar Association to endorse same-sex marriage later this week! See: ABA to Consider Same-Sex Marriage Measure” The ABA is meeting in San Francisco, beginning today (what timing, what synergy!).
—Pastor Dan Hooper