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Prop 8 Ruling: Same-Sex Marriage Foes Conduct Post-Mortem

4 years ago
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Leave it to the Liberty Counsel, a conservative action group, to say what many people have been thinking about a federal judge's ruling Wednesday that struck down California's anti-same-sex marriage initiative. Proposition 8, the group alleges, was not "adequately defended" in court in San Francisco by a rival conservative group, the Alliance Defense Fund.

Here is a portion of the organization's press release issued just hours after U.S. District Judge Vaughn Walker declared the marriage ban unconstitutional under the equal protection and due process clauses of the Constitution:
The California Attorney General did not oppose Liberty Counsel's intervention, but ADF did. Liberty Counsel sought to provide additional defense to Prop 8 because of concern that the case was not being adequately defended. After ADF actively opposed Liberty Counsel, ADF presented only two witnesses at trial, following the 15 witnesses presented by those who challenged the amendment. Even Judge Walker commented that he was concerned by the lack of evidence presented by ADF on behalf of Prop 8.

These sentiments go beyond mere rivalry or envy among religious groups vying to put a nail in the same-sex marriage coffin. They help insulate Judge Walker (a little, anyway) from the wrath of Prop 8's supporters by forcing the following question -- do biased judges truly express open and persistent concern for the very litigants they are supposedly biased against? And they also reflect a healthy and welcomed degree of astonishment about the paltry defense offered up for Prop 8. Indeed, many court observers have known for months now that lead defense attorney Charles Cooper and his team were doing a poor job at trial against esteemed counsel for the opposition, the legal rock stars Ted Olson and David Boies. Judge Walker even commented on the problem during closing arguments -- something I have never seen in nearly 14 years as a legal analyst.

You might even say the Liberty Counsel's shot across the bow was discreet and generous in the circumstances; of the two witnesses mentioned above, the testimony of one was deemed inadmissible by Judge Walker because it was so utterly unbelievable and contradictory. Liberty Counsel is right -- if a little too polite. There was simply no "there" there to the Prop 8 defense. A witness ratio of 15-1? No credible expert witnesses? Here is a great passage from a story written 50 days ago by Richard C. Paddock, a colleague at Aol, which highlights how truly inept Cooper and Company were. It was a prescient piece of journalism.

Paddock wrote about closing arguments:
After Cooper asserted that he did not need to present evidence, Walker questioned his approach to the case and the lack of expert witnesses called to testify on the legal and social issues in the case. "Seven million Californians, 70 judges and this long history that you described," the judge said. "Why did you present but one witness on this subject?" Moments later, Cooper made a point of telling the judge that he did not know what effect banning same-sex marriage would have. "I don't know," he repeated several times. The judge then questioned whether that was an adequate argument when denying some citizens their constitutional rights. "I don't know where this is going to lead," Walker said, summarizing Cooper's argument. "Is that enough to impose restrictions on some citizens that other citizens don't suffer?"

If this were a movie, the Jon Lovitz character from "Saturday Night Live" -- yeah, yeah, that's it -- might be cast as Cooper. Or maybe Jim Carrey reprising his role as the hapless attorney in "Liar, Liar." And if this were a normal case about money or property rights, the "client" right about now might be rooting around for a malpractice attorney to investigate whether Cooper and Company didn't breach some sort of a duty of zealous representation. But of course there is nothing normal about this case. That's evident, too, from the way supporters of Prop 8 -- the folks who oppose same-sex marriage -- have gone after Judge Walker and his lengthy ruling. The contortions have been been as impressive as they have been numerous.

That the veteran, conservative judge -- first an unsuccessful appointee of Ronald Reagan and later a successful appointee of the first President George Bush -- would be riddled with gay slurs following the ruling was as inevitable as it is appalling. What's also fascinating about the reaction, though, is the way foes of same-sex marriage have gotten around the inconvenient truth -- that their advocates and tribunes came up so woefully short in court. Instead of acknowledging that Judge Walker was presented with a palpably uneven case about Prop 8's constitutionality, and without giving the judge any credit for trying over and over again to draw out Cooper's evidence and analysis, these folks instead reason that the one-sided result occurred because the judge is biased. To use U.S. Supreme Court Chief Justice John Roberts' famous analogy, that's like blaming the home-plate umpire for calling an out after the batter swings at and misses three straight pitches.

That it's easy and popular to blast a federal judge -- and evidently a gay one to boot -- doesn't make the fury well-directed. The rout occurred in Judge Walker's courtroom because Cooper and Company didn't bring enough good witnesses to rebut the testimony of the anti-Prop 8 witnesses and because defense attorneys couldn't or wouldn't effectively undermine the credibility of those anti-Prop 8 witnesses. The sweeping defeat occurred for Prop 8 supporters because Cooper and his colleagues evidently didn't understand their burden of persuasion or were unable to bear it. Reading Paddock's excerpt above makes clear that Judge Walker was, as Liberty Counsel puts it, "concerned" about the lack of evidence by Prop 8's lawyers. As well he should have been.

But none of that made any difference, for example, to Gerald Bradley, a Notre Dame law professor. He spun the ruling as an example of the judge treating pro-same-sex marriage witnesses differently (and better) than anti-same-sex marriage witnesses. Bradley wrote: "One might think, too, that some (and perhaps a lot) of what the plaintiffs' 'expert' witnesses against traditional marriage would be branded by a fair-minded judge as the fruit of passionate political advocacy, and not dispassionate scholarly analysis? Not in Judge Walker's court. Read the opinion and you will see that, when it comes to the defense witnesses in favor of Proposition 8, Judge Walker takes no prisoners, gives no quarter, shows no tender mercies." In his essay, there was no mention of the 15-1 witness ratio, or Cooper's inept performance during closing arguments, or the atrocious way in which David Blankenhorn performed on the stand as a witness for Prop 8.

The folks from the National Organization for Marriage came only a little closer to the nub of the matter. In their press release following the announcement of the ruling, they started off well, noting correctly that "anyone who watched this trial closely knew that Judge Walker would strike down Prop 8." But alas, NOM didn't blame Cooper and the lack of a defense case for the result. Instead it was Judge Walker's fault. "In Judge Walker's mind," NOM wrote, "this is not a close case; to him there is no case at all for disagreement." Indeed, when one side at trial does not present good evidence, or any evidence, or presents it so poorly and ineffectually that the judge has to publicly beg for more, there often is no valid legal reason for disagreement. And it's not the judge's job to create any. Until Prop 8's supporters begin to understand and accept that, they'll be barking up the wrong tree.

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40 Comments

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Michael

If gender is not a consideration, what of number and case? Speaking as a grammarian...

August 10 2010 at 9:47 PM Report abuse -1 rate up rate down Reply
johnpw41042

There as some who are not reading the article close enough. It states that the lawyers handdling the defense of Prop 8 did not do a good job. Of course, like one said, due to overwhelming evidence that they don't have anything worth defending?
I personally don't know why there is such a fuss about this. I don't see where two people who are making a contract between themselves can effect other couples. By making a contract between themseleves does that mean they share a bed with heteros?
Marriage by the state is a civil contract/union. Religion has nothing to do with it. Religion is secondary to the state. There is separation between church and state. When you take out the bias that comes from religion there is only one thing left and that is the denial of rights by those who have them. That denial is just based on sheer ignorance and bigotry. It is like a child saying, "mine, mine all mine, and you are not going to have any".

August 07 2010 at 11:18 PM Report abuse +5 rate up rate down Reply
1 reply to johnpw41042's comment
Michael

Wow. Perspective is overwhelming. Not all that relevant, but overwhelming.

August 10 2010 at 9:49 PM Report abuse -1 rate up rate down Reply
lisanie44

These senseless same sex marriage foes are just wasting their time with their bigotry and arrogance These foes are violating civil rights by interfering in the rights against gays and lesbians who are entitled to the right of marriage since the perception of marriage is of a union of one human being to another. There is no greater need for one to maintain civil responsibility to honor one with dignity and respect. These same sex marriage foes lack respect for their fellow human beings by treading in a place where they have no business doing so.

August 07 2010 at 10:42 PM Report abuse +2 rate up rate down Reply
spudymcspud2000

You cannot take away the rights of an individual on a popular vote. If it were up to a popular vote in 1860, blacks would not be free people now. If it were up the a popular vote in 1920, Catholics would not be citizens or have the right to vote nor would women. The majority of people 1000 years ago believed the earth was flat and the majority 500 years ago believed the earth revolved around the sun.

I think the one thing that these examples prove is that the majority is often wrong.

You better pray to your god that you will have a judge that protects your constitutional rights from the will of the majority when you white decendents of Europeans are the minority in this country in about 20 years.

August 07 2010 at 10:42 PM Report abuse +4 rate up rate down Reply
phefnero

The people spoke, and one activist judge disregarded the will of the people. He doesn't cite one case in his decision as there is no constitutional precedent to his opinion. Sadly, this will be appealed to the 9th circuit, the goofiest and most liberal court in the land and will be upheld by them. The supreme court, if they agree to hear it will be the deciding factor. This is about the will of the people. Hate to disappoint all of the homosexuals out there, but there are no constitutional protections on sexual preference. It's not a right. You want to be married? Call it anything but marriage, and perhaps more people might agree with you. When the term marriage is used, it goes against centuries upon centuries of beliefs and customs regarding one man and one woman.

August 07 2010 at 9:33 PM Report abuse -4 rate up rate down Reply
Faith

Judge Walker needs to be looked into if he is not playing with all the facts, plus,
What really makes me mad is MY VOTE WENT TO HECK. WHY VOTE.

August 07 2010 at 9:28 PM Report abuse -1 rate up rate down Reply
2 replies to Faith's comment
Mark

Bingo! When they take our vote away, we're left with nothing.

August 07 2010 at 9:42 PM Report abuse rate up rate down Reply
balewest

Your vote? What about my rights? When does a vote cancel out a person's right to happiness? Think about that.

August 08 2010 at 12:17 AM Report abuse -1 rate up rate down Reply
Mark

Didn't the people say that they didn't want this? Why is it thrust upon them? I don't understand how 99% of the population doesn't have their say in the matter. It was a referendum, just like many states have done, and the people said a collective NO to gay marriage, yet it's overturned by a liberal judge? How much more of this nonsense should we continue to take?

August 07 2010 at 9:18 PM Report abuse +3 rate up rate down Reply
drbuckles

The Right keeps telling us how they believe in the Constitution until they decide it doesn't fit their needs, and then it's we need to change the 14TH Amendment. What they're really out to do is get rid of the equal protection part of it, and have been the last 10 years.

August 07 2010 at 8:40 PM Report abuse -2 rate up rate down Reply
drbuckles

The court did its job. It protected the rights of a minority from mob rule. Of course they will say but the people voted on it. Yes they did but they were wrong. The Constitution protects all rights even if the Church and its follower say it's God word that is supreme. If you want to live in a theocracy try the Middle East where their God is the ruler and have no rights but what rights the Koran dictates.

August 07 2010 at 8:35 PM Report abuse -1 rate up rate down Reply
eilarla

First of all, The issue is for equal rights for gays and lesbians. A right is a right, not something that can or should be voted on. In this country, our forefathers believed that all men are created equal. Equal means equal. A right is a right. Equal rights are EQUAL RIGHTS. The right of marriage is not more equal for heterosexuals that it is for homosexuals. This judge was correct in his ruling. Short simple sentences that anyone can undrstand. Prop 8 was an unconstitutional law. End of arguement.

August 07 2010 at 5:34 PM Report abuse +5 rate up rate down Reply

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