Tuesday, October 13, 2009

The Gay Mafia Is Out For Blood

From time to time, I've attempted to keep our readers updated on the very important legal battle in California over Proposition 8 (the Traditional Marriage Amendment to the California constitution). In summary so far, the California Supreme Court upheld the amendment and a lawsuit has now been filed in federal court claiming, among other things, that the law violates basic federal constitutional rights which override California's law.

After shopping all over the west coast for a Ninth Circuit federal judge who would allow such a lawsuit to proceed (it's called "forum shopping"), the anti-Prop 8 forces finally found a judge who held that the complaint was sufficient to go forward into a pre-trial phase. Now between thee and me, I am really wondering how smart the attorneys could be when they didn't start by looking in San Francisco first. After all, this is the City where a liberal federal judge ruled some years back that California's Anti-Discrimination amendment for all public employment was invalid. Judge Thelton P. Henderson, a Carter appointee, essentially held that the words of the U.S. Constitution in the Fourteenth Amendment were "unconstitutional." Forbidding racial preferences in public employment was somehow discriminatory to Henderson. That was too much for even the ultraliberal, slightly loony, and much-reversed Ninth Circuit Court of Appeals.

Chief U.S. District Judge Vaughn Walker found that a cause of action upon which relief can be granted was present in this case, as well as a valid contention that federal law preempts the field in this area of civil law. A minimum of seven other judges throughout the circuit had previously found that no such cause of action existed and that the case was properly decided upon adequate independent state grounds. For the information of the legally uninitiated, the federal rule is that federal district courts must use the substantive federal law in a case which has been accepted for litigation, but must apply the local jurisdiction's procedural rules. Since Walker did not state in his findings specifically what was wrong with the California Supreme Court's ruling, it is conceivable that he found problems both with substance and procedure. But that remains to be seen.

Once a case has been accepted, it then moves into pretrial proceedings, usually including multiple legal motions. Walker's true colors have just come out. Not only was his original finding contrary to that of seven of his fellow judges, but now he has demonstrated that his rulings will go in favor of the anti-Prop 8 advocates. The plaintiffs were denied access to any "lists" which would show the names of every person who contributed in any way to the promotion and ultimate success of Prop 8 at every level of the state litigation. Walker has now found that the formerly protected "proprietary information" must now be released to the plaintiffs. The extremely tenuous and unprecedented ground that Walker bases this on is that if "any of the backers of Proposition 8 were motivated by discrimination, then the court can strike down the measure without having to decide if gays and lesbians have a constitutional right to marry [emphasis added]."

This is a breathtaking divergence from prior cases, and an insult to the integrity of the California appellate process. And it is a thuggish attack on the right of the people to advocate for legislation that might offend a "victim group." The value of this reprehensible tactic was already demonstrated in the Prop 8 campaign. Although every court in California refused to grant a motion for the release of this kind of broad fishing expedition, many of the official backers of the measure were on public record. Radio personalities, news reporters and private businesses which showed any affinity for Prop 8 were publicly "outed," boycotted, picketed and threatened. Several companies were forced to do penance by contributing to the anti-Prop 8 war chest. Several people lost their jobs. As Chronicle reporter Debra Saunders says: "Unless this ruling is overturned, the word will be out that sore losers who can't beat you at the ballot box and probably can't beat you in court can file a lawsuit designed to pry away proprietary information that they later can use to embarrass you."

There is no doubt that there were persons who contributed time and/or money to the campaign for Prop 8 are simply anti-homosexual. So what? If backers of a proposition have both personal and legal reasons for supporting a law, the only legitimate question remains is does the personal (and perhaps unlawful) purpose of some of the measure's backers in any way affect either the words or the intent of the actual legislation? Many activist homosexuals openly hate heterosexual traditionalists. If they backed a successful pro-gay marriage amendment, would that invalidate the measure? Regardless of what the very confused Walker may think, the answer is no. No matter how hateful the proponents of a measure may be, if the measure promotes a legitimate state interest, and violates no constitutional provisions by either word or effect, then the motivations of the backers is of no legal interest to the court.

Walker has demanded that lists of backers and all pro-Prop 8 strategy documents be turned over to the plaintiffs. Legal experts have so far been unable to find any previous court case which required such an onerous burden on the supporters of a ballot measure. Once again, those who cannot win at the ballot box or by healthy advocacy in the halls of the legislatures, resort to the courts to overturn the will of the people.

Essentially, what the court seems willing to do is to allow plaintiffs to argue that the motives of the proponents of a measure were not "sufficiently pure." There is absolutely no precedent for such judicial overreach, even in the crazed Ninth Circuit. Chief Justice Ron George of the California Supreme Court, who had ruled pre-Prop 8 that gay marriage was valid in California under the then-existing state constitution, ruled in upholding Prop 8's change in the state constitution that: "The issue [this time] is the right of the people to change the state constitution regardless of whether the provision is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution." Now that's the law.

The defendants (the People of the State of California) should immediately appeal this decision. If the Ninth Circuit Court of Appeals upholds the ruling, the People should then request an emergency hearing at the United States Supreme Court. Otherwise, it might be too late to protect the integrity of the electoral process. In most states, that action would be a given. But if you'll recall something I told you about awhile back, you'll know that it's not a sure thing here. The lead counsel for the People is one Jerry Brown, Attorney General of the State of California, and an active opponent of Prop 8. He has refused to recuse himself, and will not even go so far as to say that "regardless of ny personal opinions, I will vigorously defend the People of the State of California in this lawsuit."

The People of the State of California, the state and federal constitutions, and the law are all being given cards dealt from the bottom of the deck by expert crooks, liars and leftists. And none of them have considered what might happen if this travesty is allowed to continue. Prop 8 attorney Chuck Cooper said: "I cannot imagine that what is sauce for the goose will not also be sauce for the gander." Before you start applauding the judge's ruling, environmentalists and civil libertarians, consider that fact.


LL said...

I'm departing from your well written comments here but -- why don't the gay union people simply try to find legal parity with married people without using the word "marriage"?

Truth be told, most of the people in the state, me included, feel that the extension of insurance benefits, access to the ill, rights of inheritance, etc. are a proper thing.

The hang up is marriage as a defined institution. And the majority of Californians found that just too hard to swallow.

LawHawkSF said...

LL: Domestic partnerships accomplish exactly that purpose, and a large number (perhaps even a majority) of gays in California were satisfied with that. But there is an extremist element within the movement which has joined up with the "civil rights" extremists to promote the idea that if you can't call it "marriage," you are diminished as a citizen.

It's all a red herring. The true underlying purpose of this movement is to undermine, cripple and trivialize traditional religion. Once "gay marriage" has been established as a constitutional right (something I personally do not believe will happen), there will immediately be a lawsuit filed (or worse, a criminal case) by a homosexual couple who were refused wedding ceremonies in a traditional church or synagogue (they won't try a mosque, because they know what will happen to them there).

Canada's obnoxious human rights acts have already produced such a result. Cases of this kind are pending in both Massachusetts and Vermont. These radicals want religion gone forever from American life, and their feigned desire to be married in a religious ceremony is pure radical theater. They can do that right now, with no penalty. It just won't be registered as a "marriage" with the state of California, but has all the same legal advantages once a civil ceremony is conducted to make it a legal domestic partnership.

StanH said...

You give an inch, they take a mile. I too believe that gays should have every right short of marriage. It’s unbelievable that Jerry Brown as CA, AG will be the counsel for the people, he openly opposes, Prop 8, unbelievable. This is an example of the edge that’s being pushed by the left, and I fear for our country and the potential rapture that’s brewing.

AndrewPrice said...

I'm not a fan of "equal rights" except from government. When it comes to the private sector I think that anyone should have the right to be any kind of jerk they want to be, with the understanding that they will bear the consequences.

Equality under the law is all we should strive for, not protected classes.

LawHawkSF said...

StanH: I've suggested an alternative in previous blogs, but here's what I think must be the ultimate resolution. "Marriage" is a matter to be defined by an individual's conscience. I have a license from the State of California declaring my marriage to be valid. Nicely legal, but it has no meaning to me beyond that. My wedding in the Church was all that mattered. What God had joined together could not be made or unmade by man's laws. So why not eliminate marriage as a state matter entirely? Let the churches, synagogues, and gay pastors perform religious ceremonies and those who are not religious have their ceremonies, followed by a brief visit to City Hall to affirm and register a civil union for legal purposes (with no legal distinction in name or law between traditional unions and gay unions). That gets the states out of the churches and gets the churches free from the state. Therefore, whether I like it or not, a gay civil union is equal to a traditional union, but my conscience and theological beliefs leave me free to believe that a gay marriage ceremony is not theologically valid without interference from the state.

This would eliminate the church/state legal question. It would not eliminate the left's need to destroy religion, but it would require them to attack frontally rather than by using the stalking horse of "marriage."

LawHawkSF said...

Andrew: I couldn't agree more. If that were the real underlying cause of this Prop 8 fiasco, it never would have started in the first place. I re-stated my belief in how that legal equality can be gained without requiring the churches and synagogues to perform ceremonies forbidden by their doctrine. Even if the Supreme Court upholds California's law (which I believe it will), the battle will go on, with venom spewing from both directions. Eliminate the explosively religious word "marriage" from the debate, and the debate is over.

Writer X said...

LawHawk, do the people being "outed" on the list by the plaintiffs have any recourse in terms of slander lawsuits? Regarding Jerry Brown, no doubt his nose has grown at least six inches since he promised to represent Californians. Won't make for very attractive campaign photos as he runs for governor.

LawHawkSF said...

WriterX: Excellent question. And the answer is "unfortunately, no." Legally it wouldn't be defamatory to state that someone supported a particular agenda, since truth is an absolute defense to defamation. A slender reed of invasion of privacy might apply if the opponents sought out privately to gain the names for harassment purposes, but once the judge's ruling is upheld (I'm hoping it won't), then even that cause of action disappears.

We've been through this with Governor Moonbeam Brown. He appointed Rose Bird to the position of Chief Justice of the California Supreme Court. Both were ardent opponents of the death penalty, but each swore in their official capacity to uphold the people's will. During her tenure, seventeen death penalty cases came before her court, and she found a fatal flaw in each and every one. It cost her her seat on the bench. In the final case, a victim was strapped to a chair. The murderer fired eleven shots into the back of the head of the victim. Bird held that the prosecution had failed to prove the element of "intent to kill," a requirement for capital cases. A recall movement was immediately started and she was summarily tossed out on her ear along with two of her ultraliberal brethren.

CrispyRice said...

I agree with you, LawHawk, re separating the two components for everyone. I have a cousin in Germany who just got married and he had to go get his civil union at the town hall. As far as the gov't is concerned, that's all that matters. Then, they had their ceremony in the church. As far as they're concerned, that's what matters. But they wouldn't be legally joined without the civil ceremony.

Why is the gov't in the business of "marriage" anyway? I have no trouble with encouraging people to pair off and settle down - it's better for kids, it's better for society, it's better for individuals! But "marriage" is something different.

Good article.

LawHawkSF said...

CrispyRice: Good comments. The answer to your question is oddly simple: Inertia. When the Republic was founded, many of the states had official state religions (not forbidden by the constitution), and all had a strong Christian heritage. It just never occurred to them to separate marriage from the state, and they didn't foresee that marriage, let alone gay marriage, would ever be an issue. It's now time to correct that oversight before the far left can use it to further remove religion from the public forum or trivialize it into meaninglessness.

ArmChairGeneral said...

A group of people were claiming that homosexuality was not a sin in the Christian Bible. I said that it was and that hate was so no God would not like the group "God Hates Fags.com" at all. They sent this response to me:

"My sins are none of your goddamned business. What part of "freedom" do you not understand??

Get your nose out of my ass and find something to do with your time that does NOT involve worrying about who I am sleeping with.

Do you understand???? "

You are absolutely right about the gay mafia. I said nothing about anyone specifically and was just stating what facts I knew about what was in and what was not in the Christian Bible. It was supposed to be an intellectual conversation but look what it turned into. It's almost like you cannot even talk about it with these liberals.

Here's the funny thing. That person that responded to me was not even gay. On and the kicker was when he tried to lecture me on freedom meanwhile his obamagod is tasking away everyone's freedom to chose their own insurance options, their own bank, their own car and their own happiness and feelings.

Tennessee Jed said...

Hawk - a fascinating post which raises tons of questions in my mind. For example, must a judge give any weight to the decisions of other judges in concluding to dismiss the suit? Can such ruling subsequently be appealed and struck down for all the reasons you state?

Theoretically, I am not opposed to someone attempting to gain redress through the courts what they cannot accomplish through legislation, but only if they establish some kind of valid legal argument which then becomes subjected to normal appellate judicial review.

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