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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Two Congressmen confirm: National 20-week ban on abortion will come up for a vote shortly

Dustin Siggins Dustin Siggins Follow Dustin
By Dustin Siggins

WASHINGTON, D.C., April 17, 2015 (LifeSiteNews.com) – A bill to end abortion in the United States after 20 weeks will move forward, and it will have the strong support of two leading pro-life Congressmen, the two Republicans told LifeSiteNews.com at the eighth annual Susan B. Anthony List Campaign for Life Summit on Thursday.

Rep. Chris Smith, R-NJ, told LifeSiteNews and the National Catholic Register that ongoing House discussions on H.R. 36, the "Pain Capable Unborn Child Protection Act," will result in a pro-life bill moving forward.

"Very good language" is being put together, Smith told The Register. He told LifeSiteNews that he fully anticipated being able to support the final bill, because the House Republican caucus "wouldn't have something that would be unsupportable. Our leadership is genuinely pro-life."

In 2013, the "Pain Capable Unborn Child Protection Act" easily passed through the House of Representatives, only to be stalled by a Democratic-controlled Senate. This year, an identical bill was halted by Rep. Renee Ellmers, R-NC, and other Republicans -- surprising and angering pro-life leaders who thought its passage was assured. That bill, H.R. 36, is now being rewritten so it can be voted on by the full House, though its final wording remains uncertain.

Some fear that the House leadership will modify the bill to mollify Ellmers. She and others objected that the bill allows women to abort a child after 20 weeks in the case of rape – but only if they report that rape to the authorities.

Pro-life activists say removing the reporting requirement would take abortionists at their word that the women whose children they abort claimed to be raped. Congresswoman Ellmers has publicly stated the House leadership is considering such a proposal.

Jill Stanek, who was recently arrested on Capitol Hill as part of a protest to encourage Republicans to pass H.R. 36, said that would be "a loophole big enough for a Mack truck."

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Congressman Smith said the bill will come to the floor shortly. "The commitment to this bill is ironclad; we just have to work out some details," Smith said.

He also noted that, while a vote on the 20-week ban has been delayed for nearly three months, "we did get the No Taxpayer Funding for Abortion Act passed, and that would have been in the queue now, so we just reversed" the order of the two bills.

Congressman Smith spoke to both outlets shortly after participating in a panel at the Summit.

Another speaker was Rep. Steve King, R-IA, who also supports the 20-week ban.

"I can't think of what” language that is actively under consideration could make him rethink his support for the bill, King said. He also told attendees that the nation was moving in a direction of supporting life.

The outspoken Congressman declined to answer further, noting "that's asking me to anticipate an unknown hypothetical."

The annual Campaign for Life Summit and its related gala drew other high-profile speakers, including presidential candidate Senator Rand Paul, potential presidential hopeful Senator Lindsay Graham, and Republican National Committee Chairman Reince Priebus.  

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"Someone who doesn’t flinch at the dismemberment of babies is not going to flinch at the dismemberment of some evangelical baker’s conscience."
Jonathon van Maren Jonathon van Maren Follow Jonathon

Pro-lifers are winning. So now they’re coming for our cupcakes?

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By Jonathon van Maren

As I travel across Canada (and at times the United States) speaking on abortion and various facets of the Culture of Death, one of the things I hear often is a hopelessness, a despair that the West is being flattened by the juggernaut of the Sexual Revolution. There is a feeling among many people that the restriction of religious liberty, the continued legality of abortion, and the redefinition of marriage are inevitable.

This is, of course, one of the most prominent and successful strategies of the Sexual Revolutionaries—create an aura of inevitability while concurrently demonizing all those who oppose their new and mangled “progress” as Neanderthals on the cusp of being left behind by History. That inevitability becomes a self-fulfilling prophecy, because many people don’t realize that the various battles in the Sexual Revolution actually all correlate to one another—that what we are seeing now is the end game of an incredibly vast and well-planned cultural project.

It is because we miss many of these connections that we often cannot see, with clarity, how the culture wars are actually unfolding. I read with great interest a recent column by Rev. Douglas Wilson, eloquently titled “With stirrups raised to Molech.”

“We are now much occupied with the issues swirling around same sex mirage,” he writes, “but we need to take great care not to get distracted. Why have the homosexual activists gone all in on this issue? Why is their prosecutorial zeal so adamant? We went, in just a matter of months, from ‘let’s let individual states’ decide on this, to federal judges striking down state statutes, followed up hard by official harassment of florists, bakers, and photographers. Why the anger, and why the savage over-reach? And do they really think we couldn’t remember all the things they were assuring us of this time last year?”

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It’s a compelling question, and one that I’ve heard many Christians puzzling over recently. Why do the advocates of the Sexual Revolution despise those who disagree with them so viciously? It is partly because their cultural project does not, as they claim, consist of “living and let live.” It is about compulsory acceptance of any and all sexual behaviors, with tax-payer funding for the rubbers and pills they need to ensure all such behaviors remain sterile, and extermination crews to suction, poison, and dismember any inconvenient fetuses that may come into being as the result of casual coitus.

The ancient mantra “the State has no business in the bedrooms of the nation” has long been abandoned—the emboldened Sexual Revolutionaries now demand that politicians show up at their exhibitionist parades of public indecency, force schools to impose their so-called “morally neutral” view of sexuality on children, and force into silence those who still hold to traditional values.

Rev. Wilson, however, thinks that this loud and vicious war on conscience may be about even more than that. The pro-life cause, he notes, has been very successful in the Unites States. The abortion rate is the lowest it has been since 1973. Hundreds of pro-life laws are passing on the state level. The abortion industry has been successfully stigmatized. True, the successes are, for pro-lifers, often too feeble and not nearly adequate enough in the face of such unrestrained bloodshed. Nevertheless, the momentum has turned against the Sexual Revolutionaries who have championed abortion for decades—their shock and anger at the strength of the pro-life movement evident in pro-abortion signs at rallies that read, “I can’t believe I still have to protest this s**t.”

It is because of the pro-life movement’s success, Wilson muses, that the Sexual Revolutionaries may be coming at us with such fury. “If a nation has slaughtered 50 million infants,” he writes, “they are not going to suddenly get a sense of decency over you and your cupcakes. Now this explains their lack of proportion, and their refusal to acknowledge the rights of florists. Someone who doesn’t flinch at the dismemberment of babies is not going to flinch at the dismemberment of some evangelical baker’s conscience. This reveals their distorted priorities, of course, but it also might be revealing a strategy. Is the homosexual lobby doing this because they are freaking out over their losses on the pro-life front? And are they doing so in a way intended to distract us away from an issue where we are slowly, gradually, inexorably, winning?”

It’s a fascinating perspective. It’s true—and has always been true historically—that when one group of human beings is classified as nonhuman by a society as nonhuman and subsequently butchered, the whole of society is degraded. No nation and no culture can collectively and systematically kill so many human beings without a correlating hardening of the conscience. But on the pro-life front, there has been decades of fierce resistance, hundreds of incremental victories, and a renewed energy among the upcoming generation of activists. For the Sexual Revolutionaries who thought the battle was over when Roe v. Wade was announced in 1973, this must be a bitter pill to swallow indeed.

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Lisa Bourne

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‘Prominent’ Catholics attacking Archbishop Cordileone are big donors to Pelosi and pro-abort Democrats

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By Lisa Bourne

Note: To sign a petition supporting Archbishop Cordileone, click here

SAN FRANCISCO, CA, April 17, 2015 (LifeSiteNews.com) -- Big donors to the Democrat Party and pro-abortion Nancy Pelosi are among those publicly harassing San Francisco Archbishop Salvatore Cordileone for protecting Catholic identity in the area’s Catholic high schools.

A big-ticket full-page ad ran April 16 in the San Francisco Chronicle attacking the archbishop and calling Pope Francis to oust him for his efforts to reinforce Catholic principles in the schools.

A number of prominent San Francisco-area residents identifying as Catholic are signatories of the ad, and several are wealthy donors to Democrat entities and pro-abortion politicians, Catholic Vote reports.

Federal Election Commission records indicate Charles Geschke, Adobe Systems chairman and previous head of the Board of Trustees at the University of San Francisco, gave more than $240,000 to Democrat groups, as well as $2,300 to Nancy Pelosi and $4,000 to John Kerry, both politicians who claim to be Catholic but support abortion and homosexual “marriage.”

Also on the list is political consultant and businessman Clint Reilly, who gave nearly $60,000 to Democrat organizations, along with $5,000 to Barack Obama, whose administration vehemently promotes abortion and homosexual “marriage” and has continually opposed religious liberty. Reilly gave $4,600 to Pelosi as well.

Another individual in the ad attacking the archbishop who also gave big campaign donations to California pro-abort Democrats was Lou Giraudo, a former city commissioner and business executive who contributed more than $24,000 to Nancy Pelosi, $6,000 to Dianne Feinstein and $4,300 to Barbara Boxer.

Nancy Pelosi herself challenged the archbishop for his stance on Catholic teaching last year when she tried to pressure him out of speaking at the March for Marriage in Washington D.C., claiming the event was “venom masquerading as virtue.”

The archbishop responded in a letter that he was obliged “as a bishop, to proclaim the truth—the whole truth—about the human person and God’s will for our flourishing ... especially the truth about marriage as the conjugal union of husband and wife.”

The April 16 ad attacking Archbishop Cordileone was the latest in an ongoing assault since the archbishop took steps in February to strengthen Catholic identity in the schools and clarify for faculty and staff in handbooks and contract language the long-standing expectation that they uphold Church principles. 

It said Archbishop Cordileone has “fostered an atmosphere of division and intolerance” and called on Pope Francis to remove him.

“Holy Father, Please Provide Us With a Leader True to Our Values and Your Namesake,” the ad said. “Please Replace Archbishop Cordileone.”

The Confraternity of Catholic Clergy (CCC), a national association for priests and deacons, condemned Archbishop Cordileone’s harassers in a statement, saying the archbishop “teaches in conformity to the Catechism of the Catholic Church.”

“The character assassination and uncharitable venom being cast upon a bishop merely defending the doctrines of his religion is appalling and repugnant,” the CCC said. 

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“It is totally inappropriate, improper and unjust for the media and others to vilify and brutally attack him when he is doing precisely what an ordained minister and pastor of souls is obligated to do,” the group stated, “namely, speak the truth in season and out of season.”

Those behind the attack ad said the proposed handbook language was mean-spirited, and that they were “committed Catholics inspired by Vatican II,” who “believe in the traditions of conscience, respect and inclusion upon which our Catholic faith was founded.”

The Archdiocese of San Francisco denounced the ad upon its release, saying it was a misrepresentation of Catholic teaching and the nature of the teacher contract, and a misrepresentation of the spirit of the Archbishop.

“The greatest misrepresentation of all is that the signers presume to speak for “the Catholic Community of San Francisco,” the archdiocese responded. “They do not.”

The CCC pointed out that just as physicians are expected to be faithful to the Hippocratic Oath, bishops, priests, and deacons are expected to be faithful to the Church, its teachings and its authority, “since their objective is the salvation of souls, not a popularity contest.” 

In openly declaring their support for Archbishop Cordileone, the group urged the media and others to show “prudence, civility, and fair-mindedness” toward those with whom they disagree.

“He took an oath to be faithful to the Gospel,” the Confraternity stated of Archbishop Cordileone, “and in the words of the disciples in the New Testament, ‘better to obey God than men.’”

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