Chuck Cooper Strikes Back

Townhall.com ^ | August 19, 2010 | Maggie Gallagher

[Kaslin]

This week, two things happened in the gay marriage wars:

The 9th U.S. Circuit Court of Appeals issued a stay overruling U.S. District Judge Vaughn Walker's decision to permit gay marriages to take place immediately, before higher courts have a chance to review his unprecedented ruling.

And a new poll released by Public Policy Polling shows that Americans continue to oppose gay marriage by an almost 2-to-1 margin.

Normally, when a lower court judge finds a new constitutional right never before acknowledged by any federal court except his, he is modest and reasonable enough to stay his decision, recognizing that higher courts will have the final say. But Walker's behavior from start to finish in this case has not been normal or usual for a judge.

This marks the third time in this trial process that Walker has been slapped down by a higher court: once by the Supreme Court over the issue of televising the trial; once by the 9th Circuit over the issue of forced disclosure of private e-mails by campaign leaders; and now by the 9th Circuit again.

When you read the devastating brief that attorney Charles Cooper filed asking the 9th Circuit to overrule Walker, it's not hard to see why. It is a total smack-down of Walker's decision to ignore the immense amount of evidence brought to him -- not to dispute it, but to simply ignore it.

Walker tried to pretend, in essence, that the only form of evidence a trial judge may consider is expert witness testimony in court. He even ignored expert witness testimony when it clashed with his own views. Harvard professor Nancy Cott, a historian of marriage, favors gay marriage, but even she freely admitted in trial that gay marriage represented a momentous change in the public meaning of marriage, and that the effects of this change would be impossible to determine in advance.

Walker's ruling, on the other hand, creates a fantasy alternate reality in which it is simply a "finding of fact" that gay marriage has always been part of the "historical core" or our marriage tradition. Walker ignored the evidence presented from distinguished social scientists, as well as previous court decisions, that "responsible procreation" has always been considered a core purpose of marriage, in addition to evidence that children benefit by being raised by married mothers and fathers.

To give you an example of how extreme Walker is, he ruled that orientation is a protected class subject to strict scrutiny -- ignoring no less than 10 higher-court decisions to the contrary. He doesn't contest, distinguish or disagree with these binding precedents. He literally ignores their existence.

This is very odd behavior for a federal judge.

Meanwhile a new poll shows the American people are not buying the Big Lie that marriage is bigotry, even after it has been endorsed by Walker.

In the latest poll from Public Policy Polling conducted Aug. 6-9, Americans who were asked whether they believed gay marriage "should be legal or illegal" opposed gay marriage almost 2-to-1 -- 57 percent opposed, 33 percent in favor.

Republicans oppose gay marriage 81 percent to 12 percent, while Democrats only narrowly favor it 47 percent to 40 percent. The all-important independents also oppose gay marriage by a 48 percent to 41 percent margin. Whites are against it 58 percent to 34 percent, Hispanics 57 percent to 27 percent and African-Americans 52 percent to 34 percent.

The majority of courts as well as the majority of Americans believe that our marriage tradition is not unconstitutional bigotry.

Gay marriage advocates are now hoping for a technical knockout -- for the 9th Circuit to rule that the voters of California have no standing to challenge Walker's ruling. This may be a sign they understand how extreme and weak Walker's ruling actually is, how unable it is to withstand substantive review by higher courts. Ted Olson goes on TV claiming he has proved there's no possible case for opposing gay marriage. Now he's in court trying to block any higher court from reviewing his handiwork.

Does that sound like the behavior of people with an airtight logical case to you?

[Sgt_Schultze]

Further evidence for increased judicial impeachments to purge the activists in the judiciary.

[scory]

This is not odd behavior for a practicing homosexual activist. One of the things about obsessive/compulsive behavior is that it dominates all aspects of life. It may be suppressed so that this is not immediately obvious but it is always there adding a dominating influence. This judge could never render any opinion other than the one he did. Because he is not sane enough to do otherwise.

And this should be kept in mind as the homosexual agenda advances along with the overall leftist agenda. The homosexual agenda is a direct attack on religion in general and the Judeo/Christian tradition in particular. Homosexual “rights” will be used to trump long established rights and will become a weapon to silence religious voices and coerce churches into accepting sexual depravity as “right”, “good” and “proper”. The left is very happy with this because to advance the larger agenda it is necessary to marginalize people of faith and to discredit the tenets by which they live. The fallout from this will be the loss of genuine liberty and all that derives from liberty. It is not only a religious issue. The beliefs and traditions that are being destroyed are the foundational beliefs upon which this nation is based and which led to our Declaration of Independence and Constitution. Witness the complete willingness of the homosexual judge to ignore law, precedent and the results of two elections in California and dozens of such referenda across the country. We have seen this kind of high-handedness before but rarely so blatantly exercised.

[Mrs. Don-o]

Finally, cause for rejoicing. Thank you so much for posting this.

The following is the comment published today by Brian S. Brown, president of the National Organization for Marriage. I think his analysis is correct; I hope it is.

"By now, you've heard the good news. The Ninth Circuit reached out the long arm of the law to restrain Judge Vaughn Walker. The three-judge panel set a court date (Dec. 6) to hear oral arguments in the appeal of Judge Walker's ruling overturning Prop 8 (and establishing a federal Constitutional right to gay marriage) and also, in the process, overruled Judge Walker's unprecedented decision to rush his ruling into effect immediately, without any review by higher courts.

"I've been reading a lot of commentary and talking to a lot of lawyers these past few weeks. But Ed Whelan made one of the most trenchant points I've seen anyone make about the significance of the Ninth Circuit's decision to stay Walker's ruling:

"Walker's reversals also call into question the judgment of the supposed dream team of plaintiffs' lawyers, Ted Olson and David Boies," writes Whelan over at Bench Memos. "...[D]espite their massive advantage in resources, Olson and Boies have lost to Cooper and his team on every issue that has been decided by any court other than Walker's."

And just who is Ed Whelan, you may be wondering? He's the president of the Ethics and Public Policy Center and a very distinguished legal mind. He graduated summa cum laude from Harvard Law school in 1985 (serving as an editor of the prestigious Harvard Law Review), clerked for Supreme Court Justice Antonin Scalia, and spent three years in the Justice Department as Principal Assistant Attorney General for the Office of Legal Counsel.

He's one smart legal eagle, in other words. So when Ed Whelan says Judge Walker's bizarre ruling will backfire, I sit up and take notice: In fact, he writes the stay "provides yet further compelling evidence that Walker has gone utterly bonkers in his egregious mishandling of this case." He goes on:

"This is the third time that a reviewing court has smacked down Walker in this case. The first time was an extraordinary writ of mandamus that a Ninth Circuit panel consisting entirely of Clinton appointees issued last year against the incredibly intrusive discovery, grossly underprotective of First Amendment associational rights, that Walker authorized into the internal campaign communications of the Prop 8 sponsors. The second time was the Supreme Court's extraordinary (and fully warranted) stay order blocking Walker's unlawful effort to broadcast his show trial.

"To any objective observer, Walker has discredited himself by his manifest bias. However the reviewing courts ultimately decide this case, I think it's highly unlikely that Walker's wild legal analysis or his crazed purported findings will advance his cause--and far more likely that they will do the opposite," concludes Whelan.