Frank Schubert

The cheaters won: the legal circus that killed Proposition 8

Frank Schubert
By Frank Schubert

July 29, 2013 (The Public Discourse) -  When I was a kid, my brother and I would occasionally go to the Memorial Auditorium in downtown Sacramento and watch the spectacle that was then called “Big Time Wrestling.” It featured all kinds of amazing characters with different story lines. The matches always involved someone who represented the “good guy” against an adversary who embodied the “bad guy.”

People cheered and jeered every move in the ring. The bad guys won a lot of the time, usually using nefarious tactics like low blows, sleeper holds, and brass knuckles, always in front of the crowd but invariably when the referee had his back turned, distracted by some ruse or other. People would be furious when the good guy lost, but they knew that as surely as night follows day, soon enough there would be a rematch where, against all odds, the good guy would mount an incredible comeback and destroy the forces of evil right there in the ring. And secure in the knowledge of the rematch, all in the universe of teenage boys would return to normal.

The legal wrangling over Proposition 8 has reminded me of a Big Time Wrestling match. It’s something I’ve followed with more than a passing interest, since I managed the campaign that enacted the constitutional amendment. Watching Prop 8 careen through the federal court system left me feeling frustrated and sometimes incensed that the system itself seemed so staged, and appeared to be so corrupt.

But I felt, like I did as a kid, that somehow, some way the initiative adopted by over seven million California voters would escape the grasp of slick-talking lawyers and self-interested judges and politicians and emerge victorious—living to fight another day. A rematch, if you will. Alas, it now sadly appears that absent some last minute legal ruling this initiative—and with it a good chunk of the initiative process itself—is dead.

Regardless of whether you see voters defining marriage as the union of one man and one woman as the “good guy” or the “bad guy” in this political drama, the process that killed marriage in California should greatly concern anyone who cares even remotely about democracy and the rule of law.

Judges, Politicians, and Prop 8 Opponents Ignored the Rules

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.

Imagine if a judge heard a lawsuit by tomato farmers against an environmental law, but refused to disclose that he was also a tomato farmer. The media and environmentalists would scream to the heavens about the potential for bias. Yet, because the issue in this case was same-sex marriage, Walker got away with the low blow.

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.

Imagine that, in our tomato farmer case challenging state environmental laws, neither the governor nor the attorney general would defend the environmental law, and the lawsuit went undefended. What howls of protests we’d hear from the left! I can even imagine hearing demands for recalls in such a circumstance. Yet because the issue in this case was same-sex marriage, Schwarzenegger, Brown and Harris all got away with it.

Time and again during the trial Walker issued rulings widely favoring the challengers of Prop 8. Twice his rulings were overturned through emergency appeals—once by the US Supreme Court on the eve of trial—something that is virtually unheard of at the district court level. To nobody’s surprise, Walker ruled that Prop 8—which reflected a point of view on the definition of marriage that until five years before its adoption had been held in every single state in the nation, and virtually every other country since the dawn of time—violated the Fourteenth Amendment and was thus illegal under the US Constitution.

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. But not even Stephen Reinhardt could go along with the reasoning of Judge Walker; instead he invented a whole new legal rationale to get the result he—and his wife—so badly wanted.

Before Reinhardt could invalidate Prop 8, he had to deal with the thorny legal issue of “standing”—that is, did the proponents of Prop 8 have the legal right to bring the appeal, or is that something that only state officials can do? Since the governor and attorney general had refused to fulfill their obligation to defend the law, it was the proponents of the initiative bringing the appeal.

Reinhardt felt that the issue of standing rested on whether the state courts allowed initiative proponents to represent the interests of the state when elected officials refused to do so. His panel asked the California Supreme Court for advice on the question, and that court answered unanimously that initiative proponents did have that right under state law. With this answer in hand, Reinhardt did what we expected him to do and he issued his opinion striking down Prop 8.

Finally, the case was headed to the Supreme Court, but would they take it? Many observers felt that the justices would decline to take on the politically-charged issue of same-sex marriage. Yet they not only took the Prop 8 case, they took a case out of New York challenging the federal definition of marriage. I felt elated when the announcement came that review had been granted—thinking that they’d only take the case if they were going to reverse the Ninth Circuit. Otherwise, I reasoned, they could just dodge the issue by not granting review.

It’s impossible to describe the amount of work that the Prop 8 legal team did in representing the people of California before the Supreme Court. They did a phenomenal job. I thought the issue was incredibly well briefed, and superbly argued by lead attorney Chuck Cooper. After the oral argument, I was confident that we would win on the merits.

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The oral argument also convinced me that the Court was likely to invalidate the federal definition of marriage in Section 3 of DOMA using a theory of federalism—that states had the right to define marriage as they wished, and that federal law must follow the states' definitions. This only strengthened my view that Prop 8 would be upheld on the rationale that if New York had the right to redefine marriage, then surely California had the same right to go in the other direction.

I have to admit to extreme disappointment and more than a little bitterness when I read the decisions in the two cases. The Court invalidated the federal law and then refused to decide the merits of Prop 8’s constitutionality, instead punting and using “standing” as their way out.

The Cheaters Won

It’s only natural for people to want to know how I feel about the outcome, not only from a policy perspective but also from a personal perspective. After all, I put my heart into managing (and winning) the Prop 8 campaign in 2008, and since then have spent much of my professional career working on preserving marriage throughout the nation.

Here’s how I feel.

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.

The decisions worry me. I am actually less worried about the damage done to the institution of marriage than I am about the damage done to the body politic. Marriage is an eternal truth, and a profound good. Its value to society is inestimable. No government, judge, or politician has the power to change the inherent nature of marriage. In the end, the truth of marriage will prevail, even if the law decides to abandon it for a time.

Democracy, on the other hand, is not nearly so stable. Preserving it depends upon the integrity of our institutions, which are charged with specific functions to serve the interests of the body politic. Legislatures and voters pass laws they believe will benefit society; executives must fairly administer and defend those laws; and courts must impartially interpret the laws. When the votes of millions of people are ignored by the elites in government, when politicians can ignore their oath of office and assume for themselves extra-constitutional authority, when judges can ignore their own internal conflicts and impose their own political views on an issue in direct contravention of the expressed desires of the people, and when the Supreme Court can turn a blind eye to the matter and let the politicians and judges get away with it, public confidence in government is seriously, and perhaps permanently, eroded.

Some of my friends wonder if I regret taking on Prop 8, and my subsequent work in support of marriage, life, and religious liberty. The answer is no, not for a minute. I’ve never regretted standing for the truth, and I don’t regret it now. I’m not worried in the least about any impact on me, and I’ll continue to work on behalf of these critical issues. The answer to those who ask how I am doing is simply this: worry not for me, worry for thee.

Reprinted with permission from The Public Discourse

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Dr. Miriam Grossman speaks to large audience in Mississauga, Ontario Steve Jalsevac/LifeSite
Lianne Laurence

VIDEO: How DO you to talk to kids about sex? US sex-ed critic gives practical tips

Lianne Laurence
By Lianne Laurence

MISSISSAUGA, ON, August 27, 2015 (LifeSiteNews) – Talking to their children about sex is “anxiety provoking to say the least,” for parents, says American sex-ed expert, Dr. Miriam Grossman.

“Some people just can’t even do it, and that’s okay,” the New York-based psychiatrist told the crowd of 1,000 who packed a Mississauga conference hall August 18 to hear her critique of the Ontario Liberal government’s controversial sex-ed curriculum.

After Grossman explained how the Liberal sex-ed curriculum is dangerously flawed and ideologically driven, she used the question-and-answer session to give parents much appreciated and sometimes humorous practical advice on how to teach their children about “the birds and the bees.”

“If you feel you can’t do it, maybe there’s someone else in the family or in the constellation of people that you know you can trust that could do it,” said Grossman, author of “You’re teaching my child WHAT?” and an internationally sought-after speaker on sex education.

A child, adolescent and adult psychiatrist with 12 years’ clinical experience treating students at the University of California, Los Angeles (UCLA) clinic, Grossman said explaining sexuality and procreation to children is “a process,” that “shouldn’t ideally happen all at once. A child is not a miniature adult, and absorbs…new information differently than adults do.”

And parents need to be sure just what their child wants to know.

To illustrate this, Grossman referred to her earlier story about a father who gave his son every detail on human procreation after the boy asked him, “Dad, where do I come from?”

After the father finished, his son replied, “Well, that’s funny, because Johnny told me that he came from Montreal.”

“Try to find out what your child is really getting at, and, don’t give it all at once,” Grossman said. “You start with a little bit at a time…and you know, there’s so many variables here, and people have their own traditions and their own ways of explaining things, and something that might be right for my family might not be right for your family.”

She also advised that, when confronted with a four, five, six or seven-year-old asking about a pregnant woman, or where babies come, a parent can ask, “What a good question that is. What do you think?”

And parents can also legitimately put off the discussion when appropriate, telling the child, “That’s really not something you need to know about right now.”

“Wow, what a novel idea: Telling a child that they could wait until they’re older to discuss that subject,” Grossman said, adding that parents wouldn’t brook a six- or even fifteen-year-old child asking how much money they made or had in the bank. “Excuse me? Not every subject has to be an open book.”

However, the time will come when a child needs to know “about how her body’s going to change, about reproduction, about how a new life is created.”

That time, Grossman advised, is puberty, or “as puberty is beginning,” and this is especially so for girls, who, if unprepared for the surprise onset of menstruation “might think [they’re] dying.”

“The actual nitty-gritty about the birds and the bees and intercourse” can “be told in bits and pieces, or it can be told all at once, if you feel it’s necessary,” she said, adding that it’s beneficial if the parent acknowledges his or her awkwardness, because the child will think: “This must be such an important subject that my mother or my father is sitting there squirming, but he’s doing it anyway. I’m really loved.”

“And the children need to understand that as you grow up, you change a lot, not only physically but emotionally,” Grossman said, “and what may seem odd or disgusting when you’re ten years old, or whatever age, it becomes something very special and beautiful when you’re older and you’ll understand it later. You don’t have to understand it now.”


Know your child and guard your home

But as an essential foundation for this discussion, parents must both know their children and guard their home from the encroachments of a culture that Grossman described as “very, very sexualized” and “really horrible.”

“Children need parents who are loving but are also firm and authoritative,” she asserted.  “They don’t need best friends. They need us to guide them, to know what they’re doing, to be on top of what they’re doing.

So parents need to be aware of whom their child is “hanging around with, and what kind of movies are they watching…what’s going on with your child.”

“You need to know that anyway, even if it’s not about sex education,” she pointed out. “Try and know your child. Every child is different.”

And Grossman emphasized that it is “extremely important to be careful about what your child is exposed to in the home, in terms of television and Internet, obviously.”

Children need to understand that “just like you have garbage you take out of the house, you put it in the garbage bin, it’s dirty, it smells…there are other things that also don’t belong in the house.”

And children learn quickly what is, and is not, permissible inside the home, Grossman said. “Me, I keep kosher…If I go into a store, my kids know from a very young age, we don’t eat that.”

So they are used to the idea of “the world outside and the inside world, of inside your home, and inside your heart as well.”

Parents can also convey this by telling their children that “the world is an upside-down place, and sometimes the most special, holy subjects are…just thrown in the gutter. And that’s a bad thing. In our family, in our tradition, we don’t do that.”

“Sexuality is one of the subjects that in this upside-down world, it is sometimes just in the gutter,” she said. “And so I want you to tell your child to come to me when you have questions, I will give you the straight story about it.”

Grossman herself is “not even sure,” as she stated in her seminar, that sex education should be in the schools: “I believe sex education should be at home for those parents that want to do it.”

She also noted that parents “can make mistakes. We all make lots of mistakes but it’s okay, you can always come back and do it differently,” adding that this is “another wonderful message for your child. You know what, it’s okay to make mistakes, you can always go back and try and fix it.”

Grossman urged parents to visit her Facebook page, website and blog. “I have so much information you can get there that you’ll find useful,” and added that she will be publishing books for children, and has posted her critique of New York City’s sex-ed curriculum, which is similar to Ontario’s.

The parental backlash to that sex-ed curriculum, set to roll out in the province’s publicly funded schools this September, has been “amazing” Grossman noted.

Grossman’s seminar was sponsored by Mississauga-based HOWA Voice of Change along with the Canadian Families Alliance, an umbrella group representing more than 25 associations and 200,000 Ontarians opposed to the curriculum. The report on her devastating critique of the sex-ed curriculum can be found here, and the video here.

Ontario readers may find information and sign up for a September 2 province-wide protests at MPPs offices here. So far, there are protests planned for 92 of Ontario’s 107 constituencies. The parents’ movement seeking removal of the curriculum is urging all concerned citizens to join this special effort to influence individual Ontario legislators.

See related reports:

Ontario’s dangerous sex-ed is indoctrination not science says U.S. psychiatrist to large audience

Videos: US psychiatrist tells parents “stand firm” against dangerous sex-ed

See the LifeSiteNews feature page on the Ontario sex-ed curriculum containing nearly 100 LifeSite articles related to the issue

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Pete Baklinski Pete Baklinski Follow Pete

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Did the pope just endorse a gay children’s book? Of course not, says Vatican

Pete Baklinski Pete Baklinski Follow Pete
By Pete Baklinski

ROME, August 28, 2015 (LifeSiteNews) -- While mainstream media is gushing with news today that Pope Francis allegedly praised a children’s book that promotes gender theory, the Vatican is decrying what they called the "manipulation" of a cordial letter from an official in the Secretariat of State to suggest that the Vatican is promoting teachings contrary to the Gospel.

Italian children’s author Francesca Pardi was reported by The Guardian to have submitted a parcel of children’s books promoting the acceptance of homosexuality and gender theory to Pope Francis in June after Venice’s mayor Luigi Brugnaro publicly banned the author’s newest book, Piccolo Uovo (Little Egg), from children’s schools. The book was criticized by pro-family leaders for promoting non-natural family structures of two men and two women.

In a letter accompanying the books, Pardi wrote: “Many parishes across the country are in this period sullying our name and telling falsehoods about our work which deeply offends us. We have respect for Catholics. ... A lot of Catholics give back the same respect, why can’t we have the whole hierarchy of the church behind us?”

The Guardian is reporting that Pardi has now “found an unlikely supporter in Pope Francis,” who through his staff has responded to the author and is presented as “praising her work.” It quotes the following from a July 9 letter to Pardi from the Vatican.

“His holiness is grateful for the thoughtful gesture and for the feelings which it evoked, hoping for an always more fruitful activity in the service of young generations and the spread of genuine human and Christian values,” wrote Peter B. Wells, a senior official at the Vatican Secretariat of State, in a the letter The Guardian is reporting it has seen.  

While the letter gently calls the author to use her talents to spread “genuine human and Christian values,” The Guardian takes it as the pope’s endorsement of gender theory.

“Pope Francis sends letter praising gay children's book,” the paper’s headline states. “Italian book that explores different family types including same sex was banned by mayor of Venice, but pontiff becomes unlikely supporter,” reads the subtitle.

In a press release that Vatican spokesman Fr. Federico Lombardi sent to LifeSiteNews on Friday, the vice speaker of the Vatican, Ciro Benedettini, made clear that the friendly reply letter to the author in no way approves of attitudes or positions that are contrary to Catholic teaching and the Gospels.

The Vatican's statement also says that in the original letter from the secretariat of state Wells merely "acknowledged receipt" of the materials sent by Pardi, and also made clear that the letter was private and not meant for publication. 

"In no way does a letter from the Secretary of State intend to endorse behaviors and teachings not in keeping with the Gospel," says the statement, decrying the "manipulation" of the letter.

Benedettini said the blessing of the pope at the end of the letter was meant to be for the author herself, and not to affirm positions concerning gender theory that are contrary to the Church's teaching. Using the letter to this end is erroneous, he said.

Pope Francis has strongly condemned the notion of “gender theory” on numerous occasions, saying that it is an “error of the human mind that leads to so much confusion.”

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Lisa Bourne

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Poll suggests most US Catholics wrongly believe Pope Francis backs gay ‘marriage’

Lisa Bourne
By Lisa Bourne

August 28, 2015 (LifeSiteNews) -- A considerable majority of U.S. Catholics are in conflict with Church teaching on abortion and marriage, a new study says, and a startling number of those also believe Pope Francis backs homosexual “marriage.”

Despite Church teachings, Catholics in America also closely parallel the general populace in their support for abortion and homosexual “marriage,” falling short in the Biblical call to be “in the world but not of the world.”

The findings suggest what many Catholics have said is a climate of confusion in the midst of the Francis pontificate. Concerns over that confusion prompted a coalition of pro-family groups to respond with an international petition effort asking the pope to reaffirm Church teaching, drawing more than a half-million signatures.

The survey, conducted by Public Religions Research Institute, found that 60 percent of all U.S. Catholics favor legalized homosexual “marriage,” compared to 55 percent of all Americans. Likewise, 51 percent of Catholics think that abortion should be legal in all or most cases, with 53 percent of the general population holding this view.

The Catholic Church teaches that marriage is a sacramental union between one man and one woman, mirroring Christ and the Church respectively as bridegroom and bride.

The Church also teaches that life begins at conception, that each human life possesses dignity as a child of God and is to be afforded protection, making abortion an intrinsic evil.

Catholics, accounting for 22 percent of adults in the U.S. population, have a favorable view of Pope Francis, the study said, but they are very confused about his take on homosexual “marriage.”

Of the Catholics who back homosexual “marriage,” 49-percent also think the leader of the Catholic Church backs it along with them. Fifteen percent of those Catholics who oppose homosexual “marriage” also mistakenly believe Pope Francis supports it.

Pope Francis has made numerous statements in support of life, marriage and family, but the confusion remains.

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"After Ireland and the U.S. Supreme Court both approved same-sex 'marriage,' a strong reaffirmation of Church teaching could save the sacred institution of marriage, strengthen the family and dispel the lies of the homosexual revolution," TFP Student Action Director John Ritchie stated.  "Young Catholics -- even non-Catholics -- look to the Church as a beacon of morality and stability in our Godless culture, but some of our shepherds have issued confusing statements."

TFP Student Action is a part of the lay Catholic organization American Society for the Defense of Tradition, Family and Property, and is part of the alliance behind the Filial Appeal, the petition asking the Holy Father to reinforce Catholic teaching at the Vatican’s upcoming Synod on the Family in October.

Ritchie explained how the confusion was aiding the Church’s enemies, and warned of the potential consequences.

"This prayerful petition asks Pope Francis to clear up the moral confusion that's been spreading against Natural and Divine Law," he said. "If the enemies of the family continue to chip away at holy matrimony, the future of the family and civilization itself will be in even more serious peril."

At press time more than 500,000 signature had been gathered for the appeal, including five cardinals, 117 bishops and hundreds of well-known civic leaders.

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