From Public Discourse:
What is marriage law in Alabama now? What groups of people are entitled to receive a license? Are all of the marriages that have been contracted in the state of Alabama now unconstitutional? If not, then which ones are still valid? Must Alabama officials stop enforcing all of marriage’s legal protections for the rights of children, such as the presumption of paternity and presumptions of biological parental custody? After all, those incidents cannot apply equally to same-sex couples as to married couples.
What “rule of law” answers these fundamental questions? Judge Granade has now set herself up to be the chief probate officer in the state of Alabama. She has not defined marriage, and her failure to do so leaves state actors, especially probate judges, without a definition of the institution for which they are issuing state licenses. Worse, she has provided no legal standards—not even a limiting principle—to guide her administration of Alabama family law, which she has now taken upon herself. She will be rewriting the family laws of Alabama, piecemeal and arbitrarily, from her bench. Rather than conducting legislative hearings regarding the familial rights and duties related to the definition of marriage, Judge Granade will be conducting contempt proceedings in which she will decide on a case-by-case basis which actions of Alabama officials violate the Constitution and which do not.
If the rule of law is not already dead in Alabama, then it is seriously wounded indeed.
Read it all here
On Wednesday, yet another activist judge decided to impose his definition of marriage on an unwilling state, this time in Kentucky.
There’s so much nonsense in the ruling, like so many that have come before it, that it’s hard to know where to begin.
The federal “judge”, John Heyburn, dragged out all the same old canards. He repeated the completely nonsensical claim that marriage has nothing to do with procreation because not each and every married couple in America has a child (If all laws must correlate 100 percent with their aims in order to be rational, then we’re going to have to get rid of a lot more laws). And of course he invoked the phony Loving v. Virginia analogy.
But his most egregious move was to completely contradict the Supreme Court’s decision in United States v. Windsor, while purportedly using that very decision as the basis for his irrational ruling.
The Supreme Court’s Windsor decision was an incoherent mess, but that isn’t why Heyburn chose to directly contradict its holdings. No, he claimed to be following the precedent while violating it.
In short, the essential holding of Windsor was that it is the states’ prerogative to define marriage, not the federal government. Following the precedent would have required Heyburn (himself acting as part of the federal government) to uphold Kentucky’s legal definition of marriage. But the “judge” ruled just the opposite. He threw out the state’s definition, supposedly on the basis of Windsor. Eric Holder’s DOJ is doing the same thing. So we have federal officials overturning state definitions based on a Supreme Court ruling that said it’s the states, not the feds, who have the power to define marriage. It’s all really just Orwellian.
None of it is based on reason, on the law, or on the Constitution. The “progressive” elites of our society want marriage to be redefined, so they can preen about how “tolerant” and “progressive” they are, and so it shall be done, by any means necessary. Nothing like the rule of law or respect for representative government is going to stop these people.
The process that killed Prop 8 in California should concern anyone who cares about democracy and the rule of law. The cheaters won.
The Legal Circus That Killed Proposition 8
The liberal 9th Circuit Court of Appeals in California has ruled against Proposition 8 in California, which defines marriage as between a man and a woman in the state constitution.
Right off the top, the 9th Circuit begins their ruling with a phony assertion: “Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples and same-sex couples alike.”
But the California Constitution says no such thing, and never did. And quite obviously, history did not begin in November 2008. Proposition 8 was offered in answer to a prior act of judicial fiat from the CA State Supreme Court overturning the definition of marriage in the form of a statute.
Reading the ruling, it’s pure value judgment, not legal reasoning. The court is simply substituting it’s values for those of millions of California voters. That is not the role of judges in a free, democratic society.
On the the Supreme Court, where hopefully this shameful judicial activism will be reversed.
From Ed Whelan at National Review Online:
In the grand scheme of things, there is nothing enduringly significant about today’s ruling. The Ninth Circuit was just a way-station on the path to the Supreme Court, and the composition of the Ninth Circuit panel meant that there was no prospect for a reversal of Walker’s ruling. What would have been most troubling would have been a ruling that Prop 8 proponents didn’t have standing on appeal, as that might have complicated the prospects for Supreme Court review. But the case now has a seemingly clear path to the Supreme Court.
From Alliance Defense Fund Senior Counsel Brian Raum:
“No court should presume to redefine marriage. No court should undercut the democratic process by taking the power to preserve marriage out of the hands of the people. Americans overwhelmingly reject the idea of changing the definition of marriage. Sixty-three million Americans in 31 state elections have voted on marriage, and 63 percent voted to preserve marriage as the timeless, universal, unique union between husband and wife.”
“We are not surprised that this Hollywood-orchestrated attack on marriage – tried in San Francisco – turned out this way. But we are confident that the expressed will of the American people in favor of marriage will be upheld at the Supreme Court. Every pro-marriage American should be pleased that this case can finally go to the U.S. Supreme Court. The ProtectMarriage.com legal team’s arguments align with every other federal appellate and Supreme Court decision on marriage in American history.”
Via The Corner at NRO, here’s a press release from the leftist propaganda outfit Media Matters for America:
I wanted to make sure you had seen Media Matters’ latest research on five major newspapers reporting on Sen. Jeff Sessions’ opening statement at the confirmation hearing of Judge Sonia Sotomayor without noting that in 1986, Sessions’ nomination as a U.S. district court judge was rejected following allegations that Sessions had a history of making racially charged comments.
Please feel free to contact me with any questions or if you would like additional information.
Media Matters for America
Judge Sotomayor has a history of making racially charged comments which is much clearer than the allegations made by opponents of Sessions’ nomination at his Senate hearing in 1986. So is Media Matters calling for the Senate to reject Sotomayor’s nomination to the Supreme Court on that basis? Or are they simply attempting to smear any opponents of her nomination? Of course this is a rhetorical question.
The same question could be asked of senators who voted against Sessions, but plan to vote for Sotomayor.
… now on to the pro-marriage initiative battle in November.
Liberals/Democrats often compare the fight over the definition of marriage to the fight over inter-racial marriage. The analogy is ridiculous, and practically no one truly believes there’s really an analogy there; nevertheless, the California Supreme Court even made the analogy in their absurd ruling yesterday.
Barack Obama came out with one of his typically weaselly comments in response to the ruling, but it’s clear he supports the ruling. It’s pretty obvious the Democrats would come out fully in favor of re-defining marriage if the polls were on their side. Obama said:
“Barack Obama has always believed that same-sex couples should enjoy equal rights under the law, and he will continue to fight for civil unions as president. He respects the decision of the California Supreme Court, and continues to believe that states should make their own decisions when it comes to the issue of marriage.”
Reporters should ask Obama if he would have favored leaving it up to the states whether to allow or prohibit inter-racial marriage. If the issues are the same, then why should voters be allowed to decide the issue in any state?
Update: California Chief Justice Ronald George repeated his absurd reasoning in an interview with the Los Angeles Times –
He indicated he saw the fight for same-sex marriage as a civil rights case akin to the legal battle that ended laws banning interracial marriage. He noted that the California Supreme Court moved ahead of public sentiment 60 years ago when it became the first in the country to strike down the anti-miscegenation laws.
Again, there’s no analogy between race and sexual behavior. Certainly there is no comparison between the significance of gender versus race in marriage. Sex is at the core of what marriage is, while race plays no role at all. Ronald George knows this. His decision is based on emotional reaction, not reasoning, legal or otherwise.
In a partial victory for justice, most of the serious charges were dismissed against the two 13-year old boys in McMinnville, Oregon who are the targets of abusive prosecutor Bradley Berry.
Last week, [Circuit Judge John L.] Collins threw out misdemeanor sex abuse charges against the boys, a decision that means the pair no longer face lifetime registration as sex offenders should they be convicted.
But they still face trial for harassment charges, which the judge inexplicably refused to dismiss.
Defense lawyers Mark Lawrence and Rachel Negra are pressing to have the rest of the case tossed. They argued that prosecutors, who initially charged the boys with felony sex abuse, overreacted and unfairly singled them out from other Patton students — boys and girls — who also admitted swatting friends on the buttocks.
Collins rejected both lines of reasoning. He said there was no evidence the district attorney’s office set out to be vindictive and that prosecutors applied a “reasonable set of standards” when deciding what charges to file.
But there is no “reasonable set of standards” that would prosecute two young boys for horsing around at school. By any reasonable standard, the abuse that is being heaped on these boys by the prosecutors, and now being abetted by this judge, is ridiculous and disgusting. The legal system in McMinnville, Oregon has become an enemy of justice and reasonable standards.
Apparently attending law school causes many to lose all common sense and the basic ability to think like normal, decent human beings. What is being done to these boys is simply shameful.
Another abusive, out-of-control prosecutor
A lot of attention has been paid to Rudy Giuliani’s position on abortion, and to his muddled answer to the abortion question at the first Republican presidential primary debate May 3rd. But not much focus has been put on what may be the most problematic part of his answer. As quoted by Charles Krauthammer in his latest column:
On repealing Roe v. Wade:
Giuliani: It would be okay to repeal. It would be also [okay] if a strict constructionist judge viewed it as precedent, and I think a judge has to make that decision.
Moderator: Would it be okay if they didn’t repeal it?
Giuliani: I think the court has to make that decision, and then the country can deal with it. . . . States can make their own decisions.
It’s fine to have disagreement about what the role of government should be in regulating abortion, but that last part of Giuliani’s answer was just factually wrong and contradictory. It bears repeating that if Roe is overturned, it won’t make abortion illegal in the United States, it will merely return the issue to the democratic process – i.e. it will allow states to decide.
But if Roe is not overturned, then states can’t make their own decisions. It’s an either/or proposition – either you’re for judges deciding or you’re for the states deciding. Mr. Giuliani can’t have it both ways on that question, pro-choice or not. Perhaps he simply misspoke as he was being cut off in the overly rushed format of the debate. As he seeks to clarify his position on abortion, he needs to clarify what he was trying to say in that instance as well. He needs to demonstrate that he understands all of the issues involved – the larger questions about the constitution and the proper role of judges as well as the abortion issue. Ones position on Roe and on abortion are two separate issues.
This morning on Fox News Sunday, Giuliani basically repeated his answer from the debate, unfortunately including the “let states decide” part:
GIULIANI: What I meant to convey [during the May 3rd debate] – if I didn’t convey it correctly, I’ll convey it again. The country could handle it. I mean, the country – we’ve got a federal system. What would happen is states would make decisions.
Chris Wallace did a good job in pressing him on his abortion views, and Mr. Giuliani’s position about not having a litmus test for judicial nominations was reasonable (overall, Giuliani handled himself quite well throughout the interview), but Wallace should have pressed for an answer to the question of whether Giuliani himself thinks Roe was decided wrongly. We at least would still like to hear a clear answer to that question.
“Schumer Is Right”
Ever since the push to radically redefine marriage was started by the left, they have repeatedly tried to make the silly analogy between “gay marriage” and inter-racial marriage, specifically to the case Loving vs. Virginia.
The analogy is nonsense. There are no significant differences between a black man and a white man (and none whatsoever that have anything to do with the intimate marriage relationship). To believe otherwise is by definition racist. To acknowledge that there are profound, fundamental differences between men and women is simply to acknowledge the obvious.
There’s nothing at all wrong with our nation’s laws acknowledging this as well. Those who wish to be honest about this may ask themselves, “How important to me is the race of my partner?” “How important to me is the gender of my partner”? Try to find somebody for whom there’s any comparison, let alone equivalence.
The relationship between a man and a woman is profoundly different from any relationship between two men or two women. The most obvious, but by no means the only, difference is the ability to produce a child and provide that child a father and mother. For the New Jersey Supreme Court (or any other court) to force the people of New Jersey to proclaim that they’re the same is ridiculous, and an abuse of their responsibilities as judges.
It’s past time to let the people decide – submit the Federal Marriage Amendment to the states for ratification.
Sometimes, even in a time when judical activism often seems to be the norm, judges get one right. Today is such a day:
A state appeals court upheld California’s ban on gay marriage Thursday, a critical defeat for a movement hungry for a win after similar losses in two other states.
In reversing the March 2005 ruling of a San Francisco trial judge, the 1st District Court of Appeal agreed with the state’s attorney general, who argued it is up to the Legislature, not the courts, to change the traditional definition of marriage as a union between a man and a woman.
“We conclude California’s historical definition of marriage does not deprive individuals of a vested fundamental right or discriminate against a suspect class,” the court said in a 2-1 decision. “The time may come when California chooses to expand the definition of marriage to encompass same-sex unions. That change must come from democratic processes, however, not by judicial fiat.”
Exactly right. Of course the losers of this round will appeal to the California Supreme Court, which should follow the example of restraint set by the appeals court. It’s also up to the people of California to wise up and elect a far less radical legislature that will not so cavalierly try to toss aside our fundamental social institutions.