Proposition 8 faces federal trial

Kathlene M. writes:

“Judge sets January trial for Prop 8 lawsuit.” Gay-rights advocates are hoping to overturn California’s Prop 8 yet again because they claim it violates the U.S. Constitution. A trial is set for January 2010. The lesson here is that liberals never give up the fight to alter society in their image.

LA replies:

Well, a federal suit against Prop 8 is a lot less ridiculous than the state suit was. It would have been inherently absurd for the California Supreme Court to declare a measure in the California State Constitution to be in violation of … the California State Constitution. It would not be inherently absurd for a federal court to declare a measure in the California State Constitution to be in violation of the U.S. Constitution.

The plaintiffs will undoubtedly pursue the usual devilishly false and illegitimate arguments on which three-quarters of the Modern Liberal Disorder is based: equal protection of the laws, no state shall deprive any person of liberty without due process of law, substantive due process, the Incorporation Doctrine, etc.

What are the chances of the plaintiffs’ prevailing? My first thought is that, even under the established revolutionary ground rules of modern Constitutional jurisprudence, under which federal courts on their own authority essentially re-wrote large parts of the Constitution to fit their own desires, a federal court is not going to hold that a state constitution’s declaration that marriage is the union of a man and woman violates the equal protection of the laws under the 14th Amendment. But maybe I’m wrong. Let’s not forget Lawrence v. Texas. If the U.S. Supreme Court could overthrow all sodomy laws in the U.S. on the basis that they violate the mysterious zone of privacy that was invented by the Supreme Court in Griswold v. Connecticut, and that was further expanded into cosmically defined liberty by the Court in Planned Parenthood v. Casey, would it be that much of a stretch for federal courts to overthrow state laws and constitutional enactments declaring that marriage is the union of a man and woman, on the basis that such measures violate the equal protection of the laws?

Any insanity is possible. But I still think it’s unlikely that the plaintiffs will prevail. There are (un)constitutional bridges too far, even for radical liberal judges.

- end of initial entry -

A. Zarkov writes:

Look a little deeper in the article and you will see that one of the attorneys for the plaintiffs is supposed conservative Theodore Olson. The Times picks up on this in their article, “A Conservative’s Road to Same-Sex Marriage Advocacy.” Law professor Orin Kerr probes even deeper here. Note especially,

“What makes Olson’s involvement in the same-sex marriage litigation so interesting—and among right-of-center lawyers, controversial—is that his position is relying on the kinds of constitutional arguments that Olson is personally so closely identified with rejecting. The Times story touches on this, but I would add a bit more detail. Those who have watched Olson’s annual Supreme Court Roundups for the Federalist Society know how harsh Olson tends to be about judges who Olson thinks are constitutionalizing their policy views, especially when that means constitutionalizing social policies popular among elites. Olson hasn’t just been critical of those who take a broad view of constitutional meaning in this setting: he has been dismissive and sometimes even brutal.”

So here we have another ersatz conservative who has fallen under the mystique of modern liberalism. It’s true that a lawyer often takes cases that he disagrees with personally, but this is different because Olson is employing the very arguments and ideology that he is supposed to detest.

LA replies:

And doing so very aggressively. Various homosexual organizations have opposed this suit, because they think it has a poor chance in federal court and will set back their cause. The groups prefer continued action on the state level, such as having another referendum in Calif to overthrow Prop. 8. But Olson and Boies, as reported in the Orange Country Register, insist that this is a matter of principle:

Boies and Olson acknowledged others’ desire to put the measure before voters.

“It’s important to move forward on every front,” Boies said, while emphasizing that gay couples should not have to sit on their hands awaiting a ballot measure that may or may not pass. “When you have people being denied constitutional rights today, it’s wrong to say, ‘No, you have to wait.’”

So, Olson is not doing this as an attorney working for a client. He is doing this as someone committed to ending an unendurable injustice—the unendurable injustice that Adam can’t “marry” Steve.

The article continues:

There are some constitutional law experts who do give the federal suit a chance of success, including John Eastman, law school dean at Chapman University and a Prop. 8 supporter, and Erwin Chemerinsky, law school dean at the University of California, Irvine.

“Ultimately, it will all depend on (Supreme Court Justice) Anthony Kennedy,” Chemerinsky said. “My own prediction is that the Supreme Court will vote 5-4 that the ban on same-sex marriage violates equal protection and the right to marry, but it will be a while before it gets there.”

I have to say that, while I don’t think the suit’s chances are good, if the U.S. Supreme Court did hold that a state constitution that defined marriage as the union of a man and woman violated the equal protection clause, meaning that there is a federal right for same sex couples to marry and that all state measures protecting marriage were invalidated, I think there would finally be a revolution in this country against judicial usurpation of legislative and constitution-writing powers—the revolution that there should have been in 1962 against the school prayer decision, and in 1973 against Roe v. Wade, and in 1992 against Planned Parenthood v. Casey, and in 2003 against Grutter v. Bollinger and Lawrence v. Texas.

And to clarify what I am saying, by “revolution” I do not mean a violent overthrow of the existing order. I mean an uprising at both the popular and political level, driven by intense outrage, that could take a variety of forms: popular protests, civil disobedience, movements to impeach judges, legislative proposals to limit the jurisdiction of the federal courts, constitutional amendments to overturn the most obnoxious decisions and limit the future power of the courts, and refusal by state governments to abide by federal court rulings.

As I said, some homosexual rights organization have been against this suit because they thought it had a poor chance and would set back their cause. But I think that if the suit is successful it could also set back their cause, in ways they cannot now imagine.

MG writes:

… ending an unendurable injustice—the unendurable injustice that Adam can’t “marry” Steve.

I think the main obstacle to Federally legalizing gay marriage is a simple fact: once two “loving” men can be married, who is to say that three “loving” women cannot be married. Or two men and three women?

Exactly same arguments apply in the case of Adam, Steve and David as in the case of Adam and Steve.

My guess is that our society will look down the abyss and step back in horror.

Posted by Lawrence Auster at August 19, 2009 10:37 PM | Send

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