Frank Schubert

Opinion

The cheaters won: the legal circus that killed Proposition 8

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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‘Little miracles’: Mom gives birth to naturally-conceived quintuplets after refusing ‘selective reduction’

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An ultrasound of the five different compartments, each with its own baby, inside Kim's womb.

AUSTRALIA, February 5, 2016 (LifeSiteNews) -- A 26-year-old Australian mom has given birth to five healthy babies, all conceived naturally, after refusing the doctor’s advice that she must abort three of them in order to give the remaining two a better chance at life. 

“After my initial ultrasound I was told I could consider the selection method to give 2 babies the best chance in life,” wrote mom Kim Tucci in a Facebook post last September. 

“I watched a YouTube video on the procedure and I cried. I could never do that! Was I selfish for not giving two the chance of 100% survival? All I knew is that I already love them and that every heart beat I heard I connect with them more. For me life starts when a heart starts beating and all I know for sure is that I will do whatever it takes to bring them into this world healthy,” she wrote. 

Last Thursday Kim and her husband Vaughn welcomed the five new members into their family — one boy and four girls —increasing the number of their children from 3 to 8. The babies were born at 30 weeks, 10 weeks early, due to insufficient space in Kim’s womb. They weighed on average about 2.5 pounds. 

The quintuplets’ story began last March, after Kim and Vaughn had been trying for six months to conceive just one more child for their family. Due to health complications, Kim wondered if she would ever become a mother again. 

After what she thought was an extra long cycle, she decided to take a pregnancy test. 

“I was feeling tired and a little nauseated and thought I would take a pregnancy test just to get the ‘what if’ out of my head. To my shock and utter excitement it was positive,” she wrote on a Facebook post.

The parents got the shock of their lives when doctors confirmed in an ultrasound examination that there was not one baby, but five. 

“After a long wait for the ultrasound we finally went in. The sonographer told me there were multiple gestational sacks, but she could only see a heart beat in two. I was so excited! Twins!”

“I was moved to another machine for a clearer view and had the head doctor come in and double check the findings. She started to count, one, two, three, four, five. Did i hear that correctly? Five? My legs start to shake uncontrollably and all i can do is laugh. The sonographer then told me the term for five is ‘quintuplets,’” Kim wrote.

Even though Kim began to feel stretched to the limit with all those human lives growing inside her, she chose to focus on her babies, and not herself, referring to them as “my five little miracles.” 

“It's getting harder as each day passes to push through the pain, every part of my body aches and sleeping is becoming very painful. No amount of pillows are helping support my back and belly. Sometimes I get so upset that I just want to throw my hands up and give in.”

“Sometimes my pelvis becomes so stiff I can barely walk and my hips feel like they are grinding away constantly. I'm finding it hard to eat as I basically have no room left in my stomach, and the way it is positioned it's pushed all the way back with the babies leaning against it.” 

“My skin on my belly is so stretched its painful and hot to touch. It literally feels like I have hives! No amount of cream helps relieve the discomfort. I have a lot of stretch marks now. Dealing with such a huge change in my body is hard.” 

“Is it all worth it? Yes!!!! I will keep pushing through,” she wrote in one Facebook post days before the babies were born. 

The newborns' names are Keith, Ali, Penelope, Tiffany, and Beatrix. They were born at King Edward Memorial Hospital in Subiaco, Western Australia. Mother and babies are reported to be doing well. 



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UN rights chief tells Catholic countries to legalize abortion over Zika virus: bishops and cardinal react

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GENEVA, February 5, 2016 (LifeSiteNews) -- The United Nations, following the lead of international abortion activists, is now urging Latin American countries hit by the mosquito-borne Zika virus to lift restrictions on abortion for pregnant women who have contacted the virus and whose pre-born children may be at risk for birth defects, including having smaller than normal heads. 

The UN human rights office said today that it is not enough for South American countries to urge women to postpone pregnancy without also offering them abortion as a final solution. 

“How can they ask these women not to become pregnant, but not offer… the possibility to stop their pregnancies?” UN spokeswoman Cecile Pouilly told reporters. 

UN human rights chief Zeid Ra’ad al-Hussein said that governments should make available contraception and abortion services.

“Laws and policies that restrict (women’s) access to these services must be urgently reviewed in line with human rights obligations in order to ensure the right to health for all in practice,” he said.

But Brazil’s bishops strongly asserted yesterday that efforts should be made to eradicate the virus, not the people who may be infected by it. 

The disease is “no justification whatsoever to promote abortion,” they said in a statement, adding that it is not morally acceptable to promote abortion “in the cases of microcephaly, as, unfortunately, some groups are proposing to the Supreme Federal Court, in a total lack of respect for the gift of life.”

Honduras Cardinal Oscar Rodriguez Maradiaga has also come out strongly against the notion of “therapeutic abortions” as a response to the problem. Unlike Brazil where abortion is legal in the case of rape or health of the mother, abortion remains entirely illegal in Honduras.

“We should never talk about ‘therapeutic’ abortion,” the cardinal said in a homily at a February 3 Mass in Suyap. “Therapeutic abortion doesn’t exist. Therapeutic means curing, and abortion cures nothing. It takes innocent lives,” he said. 

While the World Health Organization (WHO) declared an international public health emergency February 1 on account of concerns over the virus, critics have pointed out, however, that not one death as resulted from the virus. Even on WHO’s own website the virus is described in mild terms. 

“It causes mild fever and rash. Other symptoms include muscle pain, joint pain, headache, pain behind the eyes and conjunctivitis. Zika virus disease is usually mild, with symptoms lasting only a few days,” the website states. “To date, there have been no reported deaths associated with Zika virus,” it added. 

Critics suspect that the crisis is being manipulated to advance an anti-human agenda on the pre-born. 

“Is Zika, actually, a hideous virus that threatens to spread uncontrollably across the world creating an army of disabled children with tiny heads and low IQ’s? Or might this be a willful misinterpretation of the scarce data to manipulate public opinion and legislatures?” wrote pro-life critic Mei-Li Garcia earlier this week.

“It becomes very clear that the publicity surrounding this story has a very little to do with medicine and a lot to do with a convenient crisis that is being used by those pushing for the legalization of abortion around the world,” she wrote.



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Hillary’s litmus test for Supreme Court picks: They must ‘preserve Roe v. Wade’

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DERRY, NH, February 5, 2016 (LifeSiteNews) - Hillary Clinton has a litmus test for Supreme Court nominees - several, in fact. At a Democratic event on Wednesday, Clinton unveiled her criteria in selecting a judge for the nation's highest court.

“I do have a litmus test, I have a bunch of litmus tests," she said.

"We’ve got to make sure to preserve Roe v. Wade, not let it be nibbled away or repealed,” she said.

There have been over 58,000,000 abortions since the 1973 court ruling legalizing abortion in all 50 states, according to National Right to Life.

That echoes her recent call to arms speech before Planned Parenthood last month, when she stated that taxpayers must fund abortion-on-demand in order to uphold the "right" of choice.

“We have to preserve marriage equality,” Clinton said, referring to last summer's Obergefell v. Hodges case, a 5-4 ruling that redefined marriage nationwide. “We have to go further to end discrimination against the LGBT community."

Her views differentiate her from the Republican front runners. Ted Cruz has called the court's marriage ruling "fundamentally illegitimate," and Donald Trump told Fox News Sunday this week that he would "be very strong on putting certain judges on the bench that I think maybe could change things." Marco Rubio has said he won't "concede" the issue to the one-vote majority.

All Republican presidential hopefuls say they are pro-life and will defund Planned Parenthood.

Her husband, Bill Clinton, raised the makeup of the Supreme Court early last month in New Hampshire, saying it receives "almost no attention" as a campaign issue.

On Wednesday, Hillary said "the next president could get as many as three appointments. It’s one of the many reasons why we can’t turn the White House over to the Republicans again.”

Clinton said her judicial appointees must also reverse the Citizens United ruling on campaign finance and oppose a recent decision striking down a portion of the 1965 Voting Rights Act. In 2013's Shelby County v. Holder, justices struck down Section 4(b) of the act, which said that certain states and jurisdictions had to obtain permission from the federal government before changing their voting laws.

At one time, most politicians frowned upon any "litmus test" for judicial nominees, emphasizing the independence of the third branch of government. "I don't believe in litmus tests," Jeb Bush told Chuck Todd last November.

But with the rise of an activist judiciary in the middle of the 20th century, constitutionalists have sought to rein in the power of the bench.



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