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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Sydney archdiocese sends letters to businesses expressing concern over support of gay ‘marriage’

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By Thaddeus Baklinski

June 29, 2015 (LifeSiteNews) – The Catholic Archdiocese of Sydney has sent letters expressing "grave concern" to numerous corporations that had sponsored a full-page newspaper ad published in The Weekend Australian on June 13 promoting same-sex "marriage".

“You are publicly supporting a strategic, political and well-funded campaign designed to pressure the federal government into changing the Marriage Act,” reads the letter from archdiocese business manager Michael Digges to one of the businesses, the law firm of Maurice Blackburn.

“I wonder whether you have questioned whether it is the role of a corporation such as yours to be participating in such an ­important matter that impacts all of Australian society now and into the future," it continued.

"For corporations to speak on such issues on behalf of shareholders, employees, clients/customers, suppliers and other stakeholders is indeed overstepping their purpose and is to be strongly resisted," the letter stated.

Maurice Blackburn, along with more than 150 other businesses including Qantas, Google, MTV, McDonald's, Levi's and the Football Federation of Australia, put their names in the ad calling for the government to amend the Australian Marriage Act of 1961, which recognizes marriage as between one man and one woman, to include homosexual couples.

Maurice Blackburn's Liberty Sanger told the ABC the letter was “uncalled for” and “a very heavy-handed response,” noting that the position of the law firm is to "continue to show our support so that others who have the same view as us have the courage to speak up and encourage parliamentarians to make the right decision in the Parliament."

The letter to corporations asking them to stay out of the culture war surrounding same-sex "marriage" follows the distribution of a pastoral letter titled "Don’t Mess With Marriage" to Sydney parishes, staff and parents of children at Catholic schools.

“Don't Mess with Marriage “explains the Church's formal teachings on the Sacrament of Marriage, and it reaffirms and supports the definitions contained within the Marriage Act 1961 and the Marriage Act Amendment of 2004, which defines marriage as "a union between a man and a woman to the exclusion of all others."

It also details the implications of changing this law to permit same-sex couples to marry.

"The Church's contribution to informing the public debate is crucial," said Anthony Cleary, Director of Religious Education and Evangelization in a statement, "because at the moment this side of the argument is not being adequately covered either by social or the mainstream media."

Cleary pointed out that for people of faith, marriage is not simply a label that can be attached and transferred to different types of relationships as the fashion of the day dictates.

He explained that marriage for Catholics is not only an emotional union, but a total commitment of body and spirit, and that the Church teaches that God is the author of marriage and that the matrimonial covenant between baptized persons is holy and has the status of a sacrament.

Earlier in June a statement from the Sydney Archdiocese said that thirty-eight Australian religious leaders representing the major religious traditions and a broad diversity of faiths and cultures, have written a public letter to Prime Minister Tony Abbott, urging him to resist attempts in Federal Parliament to redefine the meaning of marriage.

"As leaders of Australia's major religions we write to express the grave concerns that we, and those who share our various faiths, share regarding Bills that have or will be introduced into the Federal Parliament to change the definition of marriage in Australian law," the letter said.

The 38 signatories include the Catholic and Anglican Archbishops of Sydney, a bishop of the Lutheran Church, bishops from various Eastern and Orthodox Churches, Christian pastors representing major Protestant denominations, senior rabbis from the Jewish community and leaders from both the Sunni and Shia Islamic communities.

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The religious leaders pointed out that Australia's definition of marriage as a union of a man and a woman is shared by the vast majority of nations and cultures, who represent over 91 percent of the global population.

Moreover, they emphasized the need to uphold traditional marriage for the good of children, stating that, "as a couple, two persons of the same sex are not able to provide a child with the experience of both mothering and fathering. Only the institution of marriage between a man and a woman has this inherent capacity to provide children with both of these relationships that are so foundational to our human identity and development."

The Abbott federal government had gone into the last election with the policy of supporting traditional marriage, meaning that the government MPs would be bound to vote against same-sex “marriage” on a party basis if a bill is put forward.

Australian law permits homosexual civil unions, but not marriage, a law which Abbott has defended.

Following May's referendum in Ireland legalizing same-sex "marriage", Abbott reiterated that Australia will not hold such a referendum, despite pressure from activists.

"Referendums are held in this country when there is a proposal to change our constitution and I don't think anyone is suggesting the constitution needs to be changed in this respect," Abbott said. "It's up to members of parliament who are eager for change to decide whether they want to bring it forward."

The letter from the Catholic Archdiocese of Sydney to the law firm of Maurice Blackburn is available in two parts here and here.

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Supreme Court suspends Texas law that would have closed half of its abortion facilities

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By Ben Johnson

WASHINGTON, D.C., June 29, 2015 (LifeSiteNews) – About half of the abortion facilities in Texas got a reprieve from the Supreme Court on its last day in session.

Justices ruled 5-4 that, right now, the state of Texas may not enforce health protection laws that would have put all but nine of the state's abortion offices out of business. The court's conservative bloc – Chief Justice John Roberts, joined by Justices Scalia, Thomas, and Alito – objected, but Anthony Kennedy cast the decisive vote with the court's liberals.

At issue is whether the state may require abortionists to have admitting privileges at nearby hospitals and require abortion facilities to meet the same health and safety codes as other ambulatory surgical centers.

The temporary stay of Senate Bill 5 lasts until the justices decide whether they will hear an appeal from the abortion industry, which argues the law's provisions would unduly restrict a woman's access to abortion-on-demand.

“The U.S. Supreme Court was swayed, not for the first time in a week, by illogical arguments,” said Kristan Hawkins, president of Students for Life of America. “By actively lobbying against common sense regulations that would make sure women have access to ‘safe, legal and rare’ abortions, Planned Parenthood and their allies are making a mockery of women’s health care.”

“The abortion industry cares only for their bottom line, and women and their prenatal children are merely dollar signs in their business cycle,” Hawkins said.

"Women and babies are being denied protections with the Supreme Court blocking pro-life legislation,” said Lila Rose of Live Action. “Contrary to what big abortion organizations would have us believe, the possible closure of abortion facilities is due to the refusal of these corporations to adhere to sensible and ordinary medical precautions. We look forward to the day that both the legislature and the Courts use their power to protect the most vulnerable among us."

State pro-life leaders regret the loopholes that they say put women's health at risk.

“Unfortunately, women who do not have abortions at any of the nine operating ambulatory surgical centers that perform abortions will continue to be subjected to substandard medical care,” said Joe Pojman, Ph.D., executive director of Texas Alliance for Life.

The ruling does not permanently enjoin the state. It does not even guarantee justices will hear the case.

Should they decline, the law will go into effect in its entirety.

Last October, the Supreme Court allowed Texas to implement these measures while the Fifth Circuit Court of Appeals considered its decision in a 6-3 verdict. However, it added that the state must allow abortion facilities in El Paso and McAllen to operate subpar operations, defying greater protections for women, because closing those facilities would require women to drive a great distance to the next nearest abortion facility.

Earlier this month, a three-panel judge of the appeals court, based in New Orleans, upheld the health regulations. All three judges had been appointed by President George W. Bush.

Had the full requirements gone into effect, half of all the remaining abortion facilities in Texas would have closed.

The left-wing website ThinkProgress worried, if the High Court upheld the decision, it would mean that “Roe v. Wade is almost entirely dead.”

Today, representatives of the abortion lobby felt relief. "Our Constitution rightly protects women from laws that would create barriers to safe and legal abortion care, but Texas politicians have tried to sneak around the Constitution with sham regulations designed to close clinics’ doors," said Nancy Northup, president of the Center for Reproductive Rights.

Texas Gov. Greg Abbott, a pro-life Republican, vowed to “continue to fight for higher-quality health care standards for women while protecting our most vulnerable – the unborn.”

“I’m confident the Supreme Court will ultimately uphold this law,” he added.

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Post-Obergefell, states withdraw marriage licenses, ensure conscience protection

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By Drew Belsky

June 29, 2015 (LifeSiteNews) -- Friday's Supreme Court ruling redefining marriage in the United States has caused a tumult in county clerks' offices.  While some states have begun issuing marriage licenses to same-sex couples throughout, others have counties still waiting for directives from their respective attorneys general regarding how to proceed.

Louisiana governor and 2016 presidential candidate Bobby Jindal (R) announced that clerks in the Pelican State must wait 25 days before issuing marriage licenses to same-sex couples.  This is the period of time the state has to ask the 5th Circuit Court of Appeals to reconsider its own ruling on the matter.  However, Jindal admitted on Meet the Press that Louisiana will likely have to comply with the Supreme Court's Obergefell ruling before long, and the governor's directive is binding only in New Orleans, which falls under his personal jurisdiction.

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In a statement, Jindal said, “Marriage between a man and a woman was established by God, and no earthly court can alter that.”

“This decision will pave the way for an all out assault against the religious freedom rights of Christians who disagree with this decision. This ruling must not be used as pretext by Washington to erode our right to religious liberty,” he said.

Two Alabama counties have stopped issuing marriage licenses altogether.  The probate judges in Pike and Geneva Counties cited Alabama law, which states that "[m]arriage licenses may [as opposed to shall] be issued by the judges of probate of the several counties."  Judges in other Alabama counties may do likewise.

Mississippi may follow suit as well, with Gov. Phil Bryant (R) having declared his intention "to do all that he can to protect and defend the religious freedoms of Mississippi."

Lt. Gov. Tate Reeves (R) echoed Bryant, calling the Supreme Court ruling an "overreach of the federal government," whose "powers should no longer be limited to those enumerated in our Constitution."

In Texas, prior to the Obergefell ruling, state attorney general Ken Paxton (R) had requested that county clerks hold off on granting marriage licenses to same-sex couples pending state approval.  However, several clerks post-Obergefell began processing licenses immediately, especially in large urban counties.

Texas Gov. Greg Abbott (R) condemned the Obergefell decision, blasting the Supreme Court for "abandon[ing] its role as an impartial judicial arbiter" and "becom[ing] a nine-member legislature."  Abbott promised to protect the religious liberty of Texas residents: "No Texan is required by the Supreme Court's decision to act contrary to his or her religious beliefs regarding marriage."

The Texas Senate's GOP caucus, calling Obergefell "an affront to the Texas Constitution," pledged to support Abbott and his attorney general "in any legal action [they] may take to defend the religious liberty of Texans in the wake of this troubling decision."

Harris County in Texas originally balked at issuing marriage licenses to same-sex couples specifically because the forms read "man" and "woman," but the county's attorney's office directed clerks to issue the forms anyway, saying they could be corrected later.  Eventually, revised forms reading "applicant 1" and "applicant 2" were provided.

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