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.
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.
Conservative Standards 