Yet another new frontier of liberalism opens up
Kathlene M. writes:
Here’s the latest development in the homosexual lobby’s war against traditional marriage:
A federal judge has ordered sponsors of California’s Proposition 8 to release campaign strategy documents that opponents believe could show that backers of the same-sex marriage ban were motivated by prejudice against gays. If the courts find that the ballot measure was motivated by discrimination, they could strike it down without having to decide whether gays and lesbians have a constitutional right to marry.
The last few sentences in this article discuss how the decision by the judge is unprecedented.
There’s that word that liberals love to use in their quest for domination: discrimination. Discrimination is bad, except discrimination against traditional or religious people.
LA replies:
Your last point is the reality we’re dealing with all the time. What’s new and shocking here is the idea that a constitutional amendment legally approved by the people could be overthrown if the intentions of the sponsors of the amendment was discriminatory. But of course their intention was discriminatory. They were proposing an amendment to make a discrimation between heterosexual and homosexual couples!
Here’s the article Kathlene sent:
Judge to Prop. 8 backers: Turn over your papers
Bob Egelko, Chronicle Staff Writer
Saturday, October 3, 2009
(10-02) 18:10 PDT SAN FRANCISCO—A federal judge has ordered sponsors of California’s Proposition 8 to release campaign strategy documents that opponents believe could show that backers of the same-sex marriage ban were motivated by prejudice against gays.
Plaintiffs in a federal suit seeking to overturn Prop. 8—two same-sex couples, a gay-rights organization and the city of San Francisco—contend that the measure’s real purpose was to strip a historically persecuted minority group of rights held by the majority.
If the courts find that the ballot measure was motivated by discrimination, they could strike it down without having to decide whether gays and lesbians have a constitutional right to marry.
“The intent or purpose of Prop. 8 is central to this litigation,” Chief U.S. District Judge Vaughn Walker declared Thursday in requiring backers of the November 2008 measure to give the opposing side their internal campaign communications.
Backers’ argument
A day earlier, Prop 8’s sponsors told Walker in a court filing that their opponents’ claim of anti-gay motivation is legally irrelevant.
In a final round of arguments seeking to uphold the measure without a trial, defenders of the ballot measure said California voters were entitled to amend their Constitution to preserve the traditional, male-female definition of marriage for numerous reasons—including a belief that “extending marriage to same-sex couples carries a risk of weakening the institution of marriage.”
Because there is no constitutional right to same-sex marriage, it wouldn’t matter if the plaintiffs could show that Prop. 8 “was also accompanied by irrational attitudes such as animus,” or prejudice against lesbians and gays, said attorney Charles Cooper.
The initiative, approved by 52 percent of the voters, overturned the state Supreme Court’s May 2008 ruling that gave gays and lesbians the right to marry in California. The state court upheld Prop. 8 as a valid state constitutional amendment in May but also ruled that 18,000 same-sex couples who married before the election were legally wed.
Walker has scheduled an Oct. 14 hearing in San Francisco on whether to dismiss the suit or let it go to trial in January.
Judge looks for bias
In previous rulings, Walker has said the constitutionality of Prop. 8 is not an open-and-shut legal question but could depend on a variety of factors, including whether backers were biased against gays and lesbians.
He amplified that view Thursday in ordering Prop. 8’s sponsors to disclose documents, including notes and e-mails between campaign officials and consultants, that discussed their strategy and the message they wanted to send to the voters.
Although “voters cannot be asked to explain their votes,” Walker said, a ballot measure’s authors and strategists can be scrutinized to see what their motives were.
He cited a magazine article last year by the heads of the public relations firm that managed the Prop. 8 campaign in which they discussed their strategy, including plans to show how advocates of same-sex marriage would indoctrinate schoolchildren. Walker said the article undermined the campaign’s insistence that its strategy discussions were confidential.
Bad precedent?
Andrew Pugno, a lawyer for the Prop. 8 sponsors, said Friday it was unprecedented to allow “the losing side of a campaign to pry into the most intimate strategy discussions of the winning side.”
“This will make any citizen group think twice before attempting a ballot initiative,” Pugno said. He said his clients might ask a federal appeals court to intervene.
A lawyer for the plaintiffs, Theodore Boutrous, said Walker’s order would allow them to see whether the justifications Prop. 8’s defenders are now claiming for the measure were part of the campaign or after-the-fact rationales.
“Our position is not dependent on the notion that everyone who voted for Proposition 8 was acting out of bad motives,” Boutrous said. He said the plaintiffs would look for “evidence that bolsters our argument that Proposition 8 was irrational and disfavors a group in a way that’s unconstitutional.”
E-mail Bob Egelko at begelko@sfchronicle.com.
- end of initial entry -
A. Zarkov writes:
I think we have a rogue judge here because his legal theory is preposterous. I don’t see how the intent of the Proposition 8 backers can change the California Constitution. If it could, that would lead to chaos. Every amendment to the California Constitution would become vulnerable. Perhaps even the very constitution itself if someone could find historical documents that showed the original authors had some kind of animus against a protected group. A suit like this might have worked to keep Proposition 8 off the ballot, but once it’s voted in and upheld by the California Supreme Court, it’s a done deal. The U.S. Supreme Court could hold the Prop. 8 California Constitution invalid, but not on the basis of backers’ intent. The amendment would have to violate the U.S. Constitution for some other reason.
It seems to me that the parties to this action as well as the judge cannot foresee the consequences should they prevail. Such a victory would establish original intent as a valid mode of constitutional reasoning. Then all hell would break loose because Brown v. Board of Education cannot stand if original intent holds. Congress introduced the 14th Amendment, but Congress also segregated the DC school system—whoops. This why liberals hate original intent—they might have to give up Brown. I don’t see how they could get around this problem without doing something completely arbitrary such as deciding original intent only apples to state constitutions.
So I say to the parties and Judge Walker: go ahead, make my day.
Finally, discrimination per se is not the issue, it’s invidious discrimination.
Ortelio writes:
You write: “What’s new and shocking here is the idea that a constitutional amendment legally approved by the people could be overthrown if the intentions of the sponsors of the amendment was discriminatory.” And A. Zarkov writes: “The U.S. Supreme Court could hold the Prop. 8 California Constitution invalid, but not on the basis of backers’ intent. The amendment would have to violate the U.S. Constitution for some other reason.”
What’s really shocking is that this idea is not new. In 1996 it was driven into the Constitution (that’s the living-tree Constitution, of course) by five Justices of the Supreme Court of the United States. The case is Romer v Evans 517 US 620. The Wikipedia article on it doesn’t adequately make clear that the decision, written by Justice Kennedy (alive and well in 2009), is based on the simple idea that the people of Colorado, whose recent amendment of their own state constitution the Court struck down, were motivated by an “animus” against “gays.”
The Wikipedia article ends with a quote from Justice Scalia’s dissent (in which Chief Justice Rehnquist and Justice Thomas joined):
“Today’s opinion has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will.”
The courts are shaping up to treat the people of California and their constitution the same way. Quite possibly they won’t even have to find a “record” of animus by the sponsors of Prop 8—in Romer, Kennedy and the majority did not bother to assert that there was evidence of it in the record. They treated it as if it were self-evident. And though Romer had no foundation in American constitutional law, striking down Prop 8 would have a foundation—Romer ! A thriving illegal immigrant whose frontier crossing was nearly 14 years ago.
LA replies:
It seems to me that Romer is different from the argument here. The Court in Romer was not speaking of the intentions of the sponsors of the amendment, but of the meaning of the amendment in and of itself (or was it a statute, I’m not sure). They said that the amendment, in itself, was about nothing but animus against homosexuals.
But since that atrocious argument worked in Romer, why don’t the plaintiffs in California use a similar argument?
Kathlene M. writes:
Regarding the case of Romer v. Evans, the language of Colorado’s 1992 “Amendment 2” differs greatly from California’s 2008 Proposition 8 amendment to the California Constitution.
Colorado’s Amendment 2 stated:
No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self executing.
Whereas California’s Prop 8 Amendment added (or restored) this simple clarification to the California constitution:
Oonly marriage between a man and a woman is valid or recognized in California.
The Colorado amendment explicitly denies “protected status” to homosexuals, lesbians and bisexuals, but the California amendment simply clarifies the traditional definition of marriage in the state of California. Only marriage between one man and one woman, not a man and two or more women, for instance, is valid or recognized in the state of California. This is why the plaintiffs are arguing that the background “intent” of Prop. 8 was motivated by prejudice since the language of the California Prop 8 amendment itself is a simple clarification of marriage and doesn’t even mention homosexuals.
LA replies:
Thanks much to Kathlene for clearing that up.
Kathlene M. writes:
Hateful and discriminatory intent must be the new strategy of the litigious and deep-pocketed homosexual lobby to enforce their agenda. Notice the language here of Obama’s homosexual chief of the U.S. Office of Personnel Management, John Berry, in a Sept. 28th article about him in The Washington Blade (a homosexual newspaper):
Also high among Berry’s priorities is overturning DOMA. The OPM director criticized Congress for passing the law in 1996 and said it was enacted for bad reasons. “It was motivated only by hate, it was motivated by discrimination, it is a base law and it should be repealed,” Berry said.
Berry noted that Obama has called DOMA [discriminatory] and urged for its legislative repeal, but the OPM director added the best way toward overturning the law would be through the courts and not Congress. “I will tell you personally I believe that I think the courts will strike this down before Congress will have to repeal it legislatively,” he said. “And thank goodness because, in this case, the backbone is not there in Congress.”
[From: “ENDA should be top priority-Berry; says ‘Don’t Ask,’ DOMA repeal should also be pursued,” The Washington Blade, 9/28/09]
To paraphrase Mr. Zarkov, go ahead and make our day! If such a strategy should prevail, they will unleash utter chaos.
Posted by Lawrence Auster at October 03, 2009 02:21 PM | Send