How to Revive Prop. 8? Do It Again

Martin Knight at RedState suggests that marriage defenders in California not put too much faith in the judicial appeal process to save Proposition 8, and advises a different course of action:

My recommendation, unless otherwise prevented by the California Constitution is for marriage proponents to mount up another campaign to get another Amendment proposition on the ballot as soon as possible before Perry v. Schwarzenegger makes its way to the Supreme Court.

This time, they should word the Amendment specifically to address Judge Walker’s “findings of fact.” Most especially his “finding of fact” that basically declares that children have no bearing on the institution of marriage.

As I’ve maintained over and over on RedState, the only way a court can mandate a states to recognize same-sex marriages is by discounting the central role children play as the raison d’etre of institution i.e. to tie a man to his offspring and their mother to provide the most stable and sustaining environment in which to raise them. The fact is that the decoupling of procreation with marriage within many inner city communities is perhaps the primary cause of the devastation one finds there.

Ultimately though, once the role of children is discounted, there is simply no valid reason why any state would refuse an incestuous couple i.e. brother-sister, mother-son, father-daughter, father-son, sister-sister, mother-daughter, etc. who are both consenting adults a marriage license.

I therefore recommend marriage proponents in California quickly get another Proposition on the ballot and this time make sure to add the provision against incest, and an explicit whereas statement […] I submit that it would be one hell of a task for any judge to claim that children are irrelevant to marriage so gays should be allowed to marry while siblings should not be allowed to marry because their children could have genetic abnormalities.

Another twist of the Gordian Knot would be that the judge would be forced by necessity to address the issue of same-sex siblings who want to marry. They cannot have children so there is no reason to deny them a marriage license – which incidentally would bump up against the 14th Amendment.

Good idea. Regardless of how right he is on the details, conservatives should absolutely know better than to put all their hopes in a single strategy. We have to fight this on multiple fronts: judicial, constitutionally in California, and yes, constitutionally at the federal level.

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Tyrannical Judicial Malpractice in California

A federal judge has ruled California’s Proposition 8, which maintains the definition of marriage as a man-woman union, unconstitutional. I have a post condemning the ruling slated to be published on NewsReal later today (UPDATED: here’s the link); in the meantime, National Review has some must-read analysis on the decision.

Ed Whelan on Judge Vaughn Walker’s bias:

From the outset, Walker’s entire course of conduct in the anti-Prop 8 case has reflected a manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8’s sponsors. Consider his series of controversial — and, in many instances, unprecedented — decisions:

Take, for example, Walker’s resort to procedural shenanigans and outright illegality in support of his fervent desire to broadcast the trial, in utter disregard of (if not affirmatively welcoming) the harassment and abuse that pro–Prop 8 witnesses would reasonably anticipate. Walker’s decision was ultimately blocked by an extraordinary (and fully warranted) stay order by the Supreme Court in an opinion that was plainly a stinging rebuke of Walker’s lack of impartiality.

Take Walker’s failure to decide the case, one way or the other (as other courts have done in similar cases), as a matter of law and his concocting of supposed factual issues to be decided at trial. 
Take the incredibly intrusive discovery, grossly underprotective of First Amendment associational rights, that Walker authorized into the internal communications of the Prop 8 sponsors — a ruling overturned, in part, by an extraordinary writ of mandamus issued by a Ninth Circuit panel consisting entirely of Clinton appointees.

Take Walker’s insane and unworkable inquiry into the subjective motivations of the more than 7 million Californians who voted in support of Prop 8.  

The NRO Editors:

What Walker did not prepare us for is the jaw-dropping experience of reading his sophomorically reasoned opinion. Of the 135 pages of the opinion proper, only the last 27 contain anything resembling a legal argument, while the rest is about equally divided between a summary of the trial proceedings and the judge’s “findings of fact.” The conclusions of law seem but an afterthought — conclusory, almost casually thin, raising more questions than they answer. On what grounds does Judge Walker hold that the considered moral judgment of the whole history of human civilization — that only men and women are capable of marrying each other — is nothing but a “private moral view” that provides no conceivable “rational basis” for legislation? Who can tell? Judge Walker’s smearing of the majority of Californians as irrational bigots blindly clinging to mere tradition suggests that he has run out of arguments and has nothing left but his reflexes.

But the deeper game Judge Walker is playing unfolds in those many pages of “fact finding” that make up the large middle of his ruling. There, through highly prejudicial language that bears little relation to any fact, the judge has smuggled in his own moral sentiments — in precisely the part of his opinion that would normally be owed a large measure of deference in the appellate courts. To take one example: It is hardly an incontrovertible fact that “Proposition 8 places the force of law behind stigmas against gays and lesbians.”  But there it is, as finding No. 58. With “facts” like these, and appellate judges disinclined to question them, Judge Walker plainly hopes to propel this case toward a gay-marriage victory, regardless of how transparently weak his legal conclusions are. 

The State & Marriage

Boots & Sabers regular commenter Mr. Pelican Pants has a great explication of the case for traditional marriage on this post about Obama and Proposition 8 in California:

1. No one has the “right” to marry anyone – straight, gay, whatever. Marriage is not a right afforded to anyone.

2. The institution of marriage is a social tenet and institution to serve one, fundamental purpose: the perpetuation of the human race.

3. Marriage, as a legal contract, is sanctioned by the states. Thus, the states should have the ability to decide who may and may not be allowed to be legally recognized as a married couple. Anyone is certainly free to “marry” anyone they want. Just don’t expect the state to officially recognize that marriage.

4. Back to point #2 on pro-creation, while gay couples may certainly adopt a child, or use artificial insemination to create a child, the fact remains that, at a minimum, three people are needed to achieve this act of pro-creation. As a society, we believe that no more than two people should be needed.

5. Marriage is not about hospital visits, health care benefits, or income tax breaks. Those are not rights, but rather legal side effects that have been created over time to maintain the traditional two-parent, man and woman, marriage. Thus, any gay couple claiming to be denied those rights is on very weak ground, as those are not rights, and as stated previous, marriage is not a right either.

Finally, the problem with Obama’s argument is that a. he wants it both ways; and b. he is not properly describing the problem. The reason for the constitutional amendment, as it was here in Wisconsin, was not to “deny people from being with someone they care about”, but rather reaffirming the statutory guidelines for marriage, so a judge can not arbitrarily and unilaterally make a decision of what he/she believes was the intent of the Legislature when the Legislature crafted the statutory marriage language.

The people of the state have their interests vested and represented in the appropriate state Legislature. Whether you agree or disagree with gay marriage, the majority of state residents, over a very lengthy period of time, believe that a marriage between one man and one woman is the most appropriate functioning unit to promote the family. Representatives in the Legislature have responded by crafting language that meets that long held belief.

But where gray areas may exist in statute, is where many pro-gay marriage individuals make their challenges. Which then leaves a justice of the court in the position of trying to decide what the Legislature meant when those words were crafted.

The constitutional amendment is appropriate, as there is generally no dispute or controversy as to what the Legislature intended. In addition, because it requires adoption by the people of the state in a referendum vote, the intent of the people is reaffirmed.

The very process of constitutional ratification upholds the sanctity of a democratic society, one which may not be tinkered with by a single, activist justice who believe he/she is in a better position to decide the will of the people.