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There are some awesomely bizarre factual findings in Perry v. Schwarzenegger, but this one really threw me:

“Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.”

First of all, even if this were true, it is completely irrelevant. The question before the court was whether gay marriage exists as a fundamental right under the 14th amendment. Or, in the alternative, whether Prop 8’s proscription against gay marriage violates the equal protection clause.

Whatever religion says about gays, it has no bearing on the case at all. It’s hard to imagine a less relevant purported ‘fact”. Either the constitution allows it or it does not; the position of specific groups on gay relationships is beside the point.

If his point was that people voted for prop 8 because of their biases, then he needs to have specific evidence of bias. Not the fact that TV ads were run. Not the fact that religions take certain positions. Religions take positions all the time that are ignored by the people within that religion. For example, American Catholics routinely are shown in polls to approve of the right to an abortion. Proponents of political positions may say all sorts of things. That does not mean the electorate voted in complete agreement with what was said. The ads may have had no effect at all on the opinions of the electorate.

And even more bizarre is the Judge’s extreme myopia. He goes on about the fact that the Catholic church thinks homosexuality is a sin, even quoting specific chunks of documents written by the bishops.

But he does not tell you the other part of the church’s doctrine on homosexuals. There are two parts to it. Yet the judge only revealed one part. I wonder why that was.

From the Catholic Catechism, which lays out the official positions of the Catholic church.

#2358 The number of men and women who have deep-seated homosexual tendencies is not negligible. This inclination, which is objectively disordered, constitutes for most of them a trial. They must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided. These persons are called to fulfill God’s will in their lives and, if they are Christians, to unite to the sacrifice of the Lord’s Cross the difficulties they may encounter from their condition.

So there are two parts to Catholic doctrine.

First, they say homosexual acts are a sin. But second, gays are to be “accepted” and everyone is to treat every homosexual with respect, compassion, and sensitivity.

And not to do so is a sin in the Catholic church.  

The judge told you about part one, but he did not tell you about part two. Or, he didn’t bother to find out. Or, he relied on unreliable experts for his education on the matter.


It’s a bit surprising to see this sort of thing coming out of New Zealand. New Zealand is a relatively liberal country. The question is whether religious tolerance has decayed to such an extent that liberals now want to use things like this to punish traditional religions. 

Also from Religion clause:

In New Zealand where the Jewish community has filed suit challenging the government’s refusal to exempt kosher slaughtering from a new Animal Welfare Slaughter Code that requires animals be stunned before being killed (see prior posting), the parties have agreed to allow kosher slaughtering to continue while the litigation is pending. NZPA (via reports that a consent order was issued today by the High Court at Wellington requiring a temporary exemption for kosher slaughtering until the case is decided next year.

Kosher slaughtering has always been around, and has usually been considered one of the more humane ways to do the job. So the lack of an exemption is troubling, and may indicate an animous towards traditional religions more than a concern for animal welfare.

Personally, I would not like to see our federal parks turned into hotbeds of political activity. It’s OK to have other public places wide open, but won’t the pristine beauty and serenity of the parks be ruined if we have political hacks passing out literature everywhere? After all, the whole purpose of those parks is a place to get away from the noise and frustration and conflict of everyday life. It sort of ruins the whole purpose.

From Religion Clause blog:

In Boardley v. United States Department of the Interior, (DC Cir., Aug. 6, 2010), the D.C. Circuit Court of Appeals struck down as unconstitutionally overbroad on their face requirements that individuals and small groups obtain a permit before engaging in expressive activities in national parks, even in designated free speech areas. The regulations apply to both public assemblies and distribution of written materials. The lawsuit was filed by a Christian activist who, along with his associates, was stopped from distributing gospel tracts without a permit at the Mt. Rushmore National Memorial. The court left open the possibility that the government can rewrite the rules to make them applicable only to large groups. Fox News yesterday reported on the decision. (See prior related posting.)

Putting aside the constitutional issues, the last thing I want to see is some activist handing out flyers when I go to a national park. Of course, lots of people go there, so those who want to annoy you will follow.


Issuing threats against federal judges is serious stuff. Criticism is one thing. Death threats are another. This guy belongs in jail:

Round three of the United States versus Harold “Hal” Turner, the Internet shock jock charged with threatening to kill three Chicago appeals judges, begins this morning in Brooklyn federal court.

Turner was arrested last June after writing on his blog that three judges on the 7th U.S. Circuit Court of Appeals — Richard Posner, William Bauer and Frank Easterbrook — “deserve to be killed” for their opinion in N.R.A. v. Chicago, 08-4241, which upheld handgun bans in Chicago and Oak Park, Ill.

“Their blood will replenish the tree of liberty,” Turner wrote in June 2009. “A small price to pay to assure freedom for millions.” Turner, who hosted a weekly Webcast from his home in North Bergen, N.J., also posted the judges’ photographs, work addresses and phone numbers, and promised to soon add their home addresses.

The U.S. Attorney’s Office for the Northern District of Illinois charged Turner with threatening to kill the three judges.

The case, United States v. Turner, 09-cr-00650, was assigned to Judge Donald Walter, who sat on assignment from the U.S. District Court for the Western District of Louisiana. Walter transferred the case to Brooklyn, then came along to hear it.

Ted Olson appeared on Fox News Sunday to talk about Perry. The fact that he had to BS his way through the Supreme Court cases on marriage is powerful evidence that he is blowing smoke:

CHRIS WALLACE: Mr. Olson, let’s start with the issue of judicial activism. Seven million Californians voted for Proposition 8. Seven million people voted to amend the state constitution to ban same-sex marriage. Now a single judge overrules all of them? 

TED OLSON, FORMER SOLICITOR GENERAL: Well, that’s why we have judges. That’s why we have an independent judiciary. We do not put the Bill of Rights to a vote. Forty-one states once prohibited interracial marriages, so that in Virginia when the Supreme Court finally struck that prohibition down, the president’s parents could not have been married. 

Our fundamental rights — part of our Constitution is a separation of powers and an independent judiciary. We ask judges to make sure that when we vote for something we’re not depriving minorities of their constitutional rights. And that’s what the judge did.

Where in the Bill of Rights does it say anything at all about gay marriage, or marriage at all? It doesn’t. So Olson is talking about the judge-created idea that marriage is a fundamental right. The Bill of Rights (meaning the first ten) is silent on the matter. Only when the courts started getting cute, and using the 14th amendment’s Due Process clause for things it was not meant for, did this new, judge made list of fundamental rights appear. (see Justice Thomas’s concurrence in Macdonald v. City of Chicago for a good outline of how the court got it wrong, and should have used the Privileges and Immunities clause of the 14th amendment to achieve virtually the same results. )

In every case where the court said marriage was a fundamental right, the definition of “marriage” was clear. The  word referred ONLY to a relationship between one man, and one woman. The court has never in the least intimated that “marriage” could be defined as anything but one man, one woman. Because the court has held one man, one woman marital relationships to be a fundamental right, you could say the constitutional definition of that word has become fixed.

In fact, the definition of that word has become VERY fixed, since the court has reaffirmed the idea that marriage is a fundamental right over and over again. You might say that definition has become a sort of “super-precedent” (remember that?) in terms of a constitutional definition.

So where does Olson, and his judge friend, come off redefining words that have been constitutionally fixed?

And if it were part of the Bill of Rights, how come the Court ruled against gay marriage in Baker v. Nelson in 1971? Remember, this issue has already been addressed by the court. If it was such an integral part of the Bill of Rights, or any other part of the Constitution, why did the Court dismiss the petition for cert there “for want of a substantial federal question.”?

(Where is the Greek chorus crying “Precedent! We must uphold the Baker precedent!” ? They seem to have slunk away.)

So, Olson was slinging BS a bit here.

WALLACE: But as a leading conservative lawyer, you have condemned such judicial activism in the past. Let’s take a look at what you said in 2007. “Judges have taken some of those decisions off the policy table, taking them away from the people, by constitutionalizing these issues.”

Question, isn’t that exactly what Judge Walker did in this case? 

OLSON: No. As a matter of fact, since 1888 the United States Supreme Court has 14 times decided and articulated that the right to marriage is a fundamental right. We’re not talking about a new right here. 

And in every one of those instances, “marriage” was specifically defined as one man, one woman. It was not defined as some vague idea about whoever wants to live together can get married. That is about as far from the Constitutional definition of marriage as one can get.

We’re talking about whether a fundamental right, something that the Supreme Court has characterized as the most fundamental relationship we have in this country, can be deprived of certain individuals because of the color of their skin or because of their sexual orientation.

No one is denied the right to marry because of the color of their skin anymore. I think he misspoke.

We do not permit discrimination, inequality. That’s why we have a 14th Amendment that guarantees equal rights to all citizens. It’s not judicial activism when judges do what the Constitution requires them to do, and they follow the precedent of previous decisions of the Supreme Court.

Good. So  following the previous decisions of the court would mean accepting the constitutional definition of marriage as one man, one woman.

WALLACE: But, Mr. Olson, you have also said this. Judges should, quote, “interpret the law, not make it up, not create new rights that weren’t there in the Constitution.” Where is the right to — you talk about the right to marriage. Where is the right to same- sex marriage in the Constitution? 

OLSON: Where is the right to interracial marriage in the Constitution, Chris? The Supreme Court has said that marriage, the right to marry a person of your choice, is a part of liberty, privacy, association and spirituality guaranteed to each individual under the Constitution.

Again: In every case where the Supreme Court affirmed that marriage is a fundamental right, the term marriage was defined as one man, one woman. Nowhere has the court come close to intimating that marriage is something that occurs between anyone group of people who simply desires to live together.

Where is the right to interracial marriage? Well, that IS in the Constitution. In the 14th amendment, where it says that no one should be denied equal protection of the laws. It does not require a redefinition of a very clearly defined word to understand that race can never be a bar to marriage. To deny blacks the right to marry whites is clearly a problem under the 14th amendment, considering the whole purpose of that amendment was to stop discrimination against blacks. Interracial marriage was between one man, and one woman. No problemo. Clearly unconstitutional to prohibit it.

And now Olson says “spirituality” is part of the Constitution. Sweet mystery of life! The famous “spirituality clause” of the first amendment.

OLSON: When you say “same-sex marriage,” you’re saying a particular type of marriage. The Supreme Court has looked at marriage and has said that the right to marry is a fundamental right for all citizens.

And what was the definition of “marriage” in each of those cases?


Well, Ted has no real answers, so he’s got to throw dust in your face, to distract you. Remember, when you haven’t got anything to say, go back to racism:

WALLACE: So society doesn’t get to say that marriage should be between a man and a woman, even though society has said that for thousands of years. 

Seven million people in California don’t get to say that marriage is between a man and a woman, even though just November of 2008, 7 million Californians voted that they wanted to change their own state constitution to say just that. 

OLSON: In the 1960s, an equivalent number — it’s a smaller number, but — of Californians voted to change their constitution to say that you could discriminate on the basis of race in the sale of your home. The United States Supreme Court struck that down.

Well, yes, they did, because that was clearly racial discrimination and the equal protection clause, as well as several statutes, made that illegal.  So Ted’s point is…?

In order to get where Ted wants to go, you have to start changing the constitutional definitions of words. You have to start ignoring and twisting precedent, not following it.

If we are  going to redefine words that have been very clearly interpreted for decades, we can go about redefining lots of things. For example, abortion. Should the word “abortion” mean the destruction of an embryo that has been fertilized in vitro? Why not?  

Once you go down the road of redefining well known terms, you are in for a big surprise.

Gerald Magliocca at Concurring Opinions says that judges apply strict scrutiny when they say they are applying rational basis test:

Let me ask the following question.  Has there ever been a policy enacted by Congress and by the overwhelming majority of the states that was held unconstitutional because it lacked a rational basis?  I’m sure that the answer is no (though if there is an example, I’d like to hear about it).

This, in a nutshell, states my problem with recent cases analyzing DOMA and Proposition 8.  In my opinion, these courts applied heightened scrutiny even as they said that they were applying rational basis.  If intermediate scrutiny is the correct standard of review for distinctions based on sexual orientation, then I think that the conclusion that DOMA and Prop 8 are invalid would follow.  Under rational basis, I do not see how that conclusion can be correct.

Of course, he is correct. That’s the great problem with these tests. Judges can manipulate them to get the results they want. In essence, they become tools for the judiciary to use to replace the public’s judgment with theirs. No rational basis? When Congress and the majority of the states pass such laws? All of those people were wandering around, passing laws without any conceivable rational basis?  

Where are these District Courts getting their confused approach?  The answer is the Supreme Court.  Lawrence and Romer (especially Romer) did the same thing.  They said that they were applying rational basis, but the analysis in those cases does not look like rational basis at all.  In those decisions, though, the gap between reality and the formalities was not so great.  Romer, after all, involved a provision in a single state (Colorado) that was unusual.  Likewise, Lawrence involved a policy that was embraced by only a handful of states.  Accordingly, in both instances one could plausibly say that that the holding was sound under rational basis review.

The same-sex marriage cases cannot be concealed by this smokescreen.  The Justices will have to decide whether sexual orientation is a suspect classification.  And in my view, they will do so (or, more accurately, Justice Kennedy will).

Here’s one for you:

1) According to reports, it is possible that Judge Walker may have had a personal stake in the outcome of Perry v. Schwarzenegger. Newspapers are reporting that Judge Walker is gay, and has a long term partner. Therefore, the two may have stood to benefit directly and personally by the ruling. They could now marry.

2) It may not even matter that they don’t want to marry. The perception of impartiality is there.

3) Justice John  Roberts, and others at the Supreme Court, are big on narrow rulings, and avoiding Constitutional questions if the underlying case has procedural or other flaws.

3) If the Ninth Circuit affirms, as expected, the Supreme Court may simply hold that the judge had an interest in the case, and should have recused himself. As a result, it may remand to the District Court for an entirely new trial, with a new judge. 

And the whole things starts again.

Question: Does the Supreme Court have the power to send back on its own motion, or must one of the parties raise the issue? I assume the Court has the power.

Code of Judicial Conduct for Federal Judges:

Canon 3

C. Disqualification

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:

(c) the judge knows the judge…or the judge’s spouse…has…any other interest that could be affected substantially by the outcome of the proceeding;

The fact that the Judge was gay was not in and of itself a reason for recusal. The test is whether the judge stands to gain something personally by the outcome of the case. So a gay judge may properly rule on a case involving gay issues, so long as he does not stand to benefit directly and personally. Just as a black judge may rule in civil rights cases, and a woman may rule in gender discrimination cases.

The argument is often made that a heterosexual judge is just as “biased” because he is a member of the class of persons who has a stake in the case, just as gay persons have a stake in the outcome. But recusal is not required as a result of being a member of an interested class. It is required when the benefit that may result is personal.

In almost every gay marriage case, a heterosexual judge would not stand to benefit personally by the outcome. If he were already married, it would not affect his personal ability to marry, and if he were not married, it still would not affect his ability to marry. However, if he had a gay son or daughter, that might trigger the recusal requirement.

One thing to notice – the direction in Canon 3 is not “Should” disqualify himself. It is “Shall”.

Todd Zywicki (via Nelson Lund) notes that under the terms of Judge Walker’s ruling in Perry, President Obama is a nasty man:

President Obama is a bigot because he opposes same-sex marriage.  So are Joe Biden and Hillary Rodham Clinton.  And millions of Californians of different races, sexes, and religious views.

And, their position on gay marriage was formed either by 1) adhering to one of the world’s major religions, or 2) because their normally fine minds were completely taken over by TV commercials aired by Prop 8 proponents. 

How do I know that?

It’s been proven. These are facts.

There is a disappointing tendency for gay marriage supporters to sometimes use the clever sneer as a substitute for rebuttal. Dale Carpenter, who is usually gracious and measured, does a little sneering at Maggie Gallagher today. In a post called A Day in the Life of Ivana Denisovitch- Gallagher, he first quotes Maggie Gallagher’s piece in the San Francisco Chronicle:

If this ruling is upheld, millions of Americans will face for the first time a legal system that is committed to the view that our deeply held moral views on sex and marriage are unacceptable in the public square, the fruit of bigotry that should be discredited, stigmatized and repressed. Parents will find that, almost Soviet-style, their own children will be re-educated using their own tax dollars to disrespect their parents’ views and values.

Those in power will call it tolerance, they will call it pluralism, but in truth same-sex marriage is a government takeover of an institution the government did not make, cannot in justice redefine, and ought to respect and protect as essential to the common good.

To which he replies:

 I can see it now, this post–Perry world, a land of:

hunger and frostbite, the lonely, disregarded deaths, the sadism and exploitation, the mothers snatched on the street without so much as a final goodbye to their families, the orphaned children dying of cold and starvation and neglect, the fear and mistrust felt between those who were randomly spared and those who were almost as randomly seized.

Be of good cheer, though, for it will only be almost this bad.

I can understand his pique; from his standpoint Perry was a move towards making an oppressed minority freer. But the point Gallagher is making is correct. Judges are attempting to overthrow the carefully considered will of the people. To use judicial power to destroy the expressed will of the people is an awesome thing. So it must be used with the utmost care and discretion. Judicial power should be used that way, under certain rare circumstances, where the public has clearly lost its head.

But that is not the case here. The judicial decision in Perry is specious at best; no real defense was put up in the case, and virtually everything every gay activists claimed was taken by the naive judge as Gospel. The Judge’s due  process and  equal protection arguments are weak;  that fact is widely acknowledged. He lists as “facts” things which are merely predictions; he lists as “facts” the opinions of a highly politicized academic community that is careful to expunge all free-thinkers from their midst.

No matter what the judge claims, Proposition 8 was not some massive paroxysm of hartred against gays. It was a measured attempt to insure that the most important of our institutions is not reduced to rubble. He claimed he could find no rational reason whatsoever for the passage of Prop 8. But one was staring him in the face the whole time; he just pretended not to see it.

The matter is a simple one: gay marriage changes the nature of marriage. Under Perry, it is based on affective matters entirely. Under the rationale of Perry, there is no good reason why polygamists should be kept from marrying. After all, all the elements are there – caring, nurturing people, all in love with each other, wishing to form a household and bring up kids. And, as a result of Perry, any other permutation of “marriage” must be allowed – anybody who loves anybody will be allowed to get married.

In short, gay marriage completely destroys marriage and replaces it with something new, something where love is the only measure. And since love can occur between sisters, brothers, cousins, polygamous gatherings – whatever – then those arrangements are constitutionally just as valuable as gay marriages. And must be allowed. There is no articulable principle in Judge Walker’s opinion that would limit marriage to 2 people at a time. Only his tenuous, and purposeful use of the word “couples”. And that little thread is not enough to stop anything.

And as an aside, heterosexual college boys ( or girls) will get married in order to get various economic benefits , or to be able to share that married students-only housing. All over the country, marriage will now be gamed by people seeking health benefits, or some government benefit. It will all be a laugh; a lark; a grand put-on. Hah, Hah, Hah, Jerry and Bill pretended to get married so they could get X, Y, or Z. It will become a hilarious trend.

And Gallagher is right. The power of government will come down on parents and will in fact attempt to force all sorts of thought control – style measures. It will insist that children be educated in a manner parents do not agree with. This government takeover of what is moral and what is not, and what should be taught and what shouldn’t is profoundly corrosive. It results in a reduction of freedom. It results in a reduction of democracy, since public issues are now being determined by a single judge.

And of course this is not even good constitutionalism, for the Perry decision, quite frankly, is a farce. What kind of judge takes evidence from activists on one side of a highly charged political debate and declares one side to be completely right, and the other to be not only wrong, but vicious, irrational,  and unconstitutional? The  injudicious nature of the judge’s opinion is pitiable.

Yes. Perry is a farce, I am afraid. It pretends to be a grand summation of the “facts” of the gay marriage debate. It is nothing of the sort. It is cheap politicking, nothing more, dressed up in the guise of weighty scholarship and deliberation. But it is the antithesis of scholarship. It is the antithesis of judicial deliberation.

As I get deeper into Judge Walker’s opinion in Perry v Schwarzenegger, I become more and more amazed. It is difficult to imagine a federal judge wrote the opinion. It reads like a poorly argued propaganda tract from a wild-eyed gay marriage supporter, not a judge. There are no shades of gray at all. In the opinion, gay marriage supporters are pure,  intelligent, and almost angel-like. Those who support traditional marriage are venal, stupid, incapable of forming a coherent thought; they are uneducated and illiterate boobs who have trouble keeping the spittle from drooling down their chins.

Federal judges just do not act this way. Something has gone horribly wrong here.

Gerard Bradley, at Bench Memos:

Now, one standard test of impartiality is fairness, and even a certain sympathy, in stating an opponent’s position and in explaining the evidence and arguments for it. This is simply what an honest search for the truth entails. Even allowing for the rough-and-tumble of litigation, Judge Walker flunks this test.

On the other hand: Judge Walker credited the plaintiffs’ witnesses across the board, and deemed almost everything of consequence that they said to be true.… 

The plaintiff’s witnesses’ uncanny accuracy is all the more surprising, for they were not exactly non-partisan technocrats. They are leading scholar-activists in the culture war over same-sex marriage.

Several are conspicuously passionate about the injustice of traditional marriage. Some even contributed money to the anti-Proposition 8 Campaign.

That these witnesses had a shared passionate commitment to same-sex marriage does not mean that their testimony was flawed (although I do think it was flawed, in many important respects). 

Their evident partisanship does not even mean that they were unqualified to be expert witnesses. It does mean, however, that an impartial judge would be keen to subject their testimony to searching critical evaluation, lest their “private morality” (to use Judge Walker’s description of the traditionalists’ beliefs about the nature of marriage) color their public testimony. On my reading of Wednesday’s opinion, Judge Walker flunks this test too.

The judge basically takes this stance: The only legitimate basis for law is the conclusions of professors at universities. The moral sense of the people is an odious thing that cannot be allowed to form the basis of law. Only professors, who have published peer reviewed work, are scientific and rational. Only their conclusions are valid. All thought among the non-university crowd is a mere expression of their smallness and stupidity.

The fact that universities are now places ruled by the hard left, places that exclude all opposing ideas rather than welcome (or even consider) them is immaterial. The fact that peer review is now being used to drive those with different opinions out of the field is irrelevant.

Welcome to the rule of judges, and their friends in the hard left universities.

You are now being ruled by the first hundred names in the Harvard phone directory.