Close this search box.

The Prop. 8 Case Charade

By August 12, 2010Legal
Print Friendly, PDF & Email

If you’d like to know what hours of fingernail scraping on a chalkboard feels like, simply give the recent California marriage decision a close read. It’s so blatantly biased as to border on comical. And because it is so over-the-top, the Ninth Circuit Court of Appeals will find it hard to uphold it without employing some creative legal gymnastics to minimize the damage created.

thshowcase.jpgThe man responsible for the opinion is United States District Chief Judge Vaughn R. Walker, whose conduct at trial and tone in the opinion resembles Perez Hilton at the Miss USA pageant. Who can forget Hilton who, when Miss California said she believed marriage to be the union between one man and one woman, famously ranted: “[L]et me explain to you: she lost, not because she doesn’t believe in gay marriage. Miss California lost because she is a dumb [expletive], okay?”

And that’s about as good an explanation as any of Judge Walker’s conclusions in this case. Actually, if Prop. 8 supporters prevail on appeal, it shouldn’t surprise anyone to see Judge Walker follow Hilton’s advice to snatch “that tiara off her head” and run “out the door.”

Way beyond the mere “appearance of impropriety”

From the beginning, Judge Walker’s bias, personal feelings, and emotions were evident to anyone following the trial. The report from the San Francisco Chronicle1 that Judge Walker himself is a homosexual only helped to explain the reasons for Judge Walker’s bizarre behavior. But his biased actions in support of pro-homosexual “marriage” advocates and against the supporters of traditional marriage were in plain view for everyone to see, regardless of his motivation.

The Supreme Court quickly recognized that Judge Walker was treating the case differently when it finally put an end to his staunch advocacy for broadcasting the trial in direct violation of the rules:

The District Court [i.e. Judge Walker] attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue2 (emphasis added).

The last part of that quote is also important, because although Judge Walker was ultimately unsuccessful in circumventing the rules to broadcast the trial, he was very successful in intimidating potential Prop. 8 witnesses, as there had already been threats by homosexual activists against supporters of traditional marriage.3 Now they were being intimidated by the “impartial” judge no less.

Judge Walker’s bias was so evident that he was even overturned in part by the liberal Ninth Circuit because he insisted on using his judicial power to harass supporters of traditional marriage by ordering them to turn over hundreds of private documents that discussed campaign strategies for Prop. 8. His purpose, as we discover in the decision, was to establish “bigoted motives” behind all who voted to protect marriage by looking at the messages from the Prop. 8 campaign. This is not only ludicrous but also illogical and legally erroneous.

Any reasonable person evaluating these facts can see Judge Walker was too emotionally invested in this trial. It is no surprise that John C. Eastman, a law professor and former dean at Chapman University School of Law, writing for the San Francisco Chronicle, concludes that Judge Walker indeed should have recused himself from the case.

Judge Walker’s failure to disqualify himself or at least to disclose his potentially disqualifying relationship to the parties requires that the opinion in the case be vacated and a new trial conducted before a different judge.4

Sham Trial

As the trial went on Judge Walker neither addressed his personal issues nor tamed his approach. At one point, he even allowed the trial to devolve into a sort of bashing of Christian doctrine. The official doctrinal statements from the Southern Baptist Convention and the Roman Catholic Church were condemned as bigoted for holding to a Biblical view of marriage. This, of course, had nothing to do with whether Prop. 8 is unconstitutional, but Judge Walker found it amusing for, as we will discuss, he alludes in his opinion that it is those religious bigots and their distortions that are the real reason that seven million Californians voted so “irrationally” to protect marriage.

As you would expect, the decision itself is a reflection of this charade. Judge Walker dismisses any evidence put forth by supporters of traditional marriage as irrational, unreliable, and not credible, while declaring all the pro-homosexual “marriage” testimony entirely reliable. Judge Walker declares the testimony of David Blankenhorn, the founder and president of the Institute for American Values, who graduated magna cum laude from Harvard with a degree in Social Studies, wrote two books on marriage, fatherhood, and family structure and has co-edited another five books on the topic, “should be given essentially no weight.”5 Of Kenneth P. Miller, professor of government at Claremont McKenna College, the “all-powerful” judge declares, “while Miller has significant experience with politics generally, he is not sufficiently familiar with gay and lesbian politics specifically to offer opinions on gay and lesbian political power.”6 You know, you can be a homicide detective, but if you have not killed anyone, how are you supposed to know anything about murder?

Judge Walker also faced the little inconvenience of precedent. The overwhelming weight of cultural, political, and legal history supporting traditional marriage and recognizing the importance of biological mothers and fathers in the parent/child relationship is too great to be ignored, especially when that evidence was cited over and over at trial. Yet that is exactly what the “good” judge did. After all, those bigoted judges of the past must not have known what they were doing when they wrote those opinions. Don’t you know the Constitution must “evolve?”

Manufacturing facts

As with any judicial activist, Judge Walker’s distortion of the evidence provides him the opportunity to reach some fantastical conclusions, lacking any foundation in reality. Among other things, the “almighty” judge declares that all ex-“gays” are liars, since homosexuals – with whom he identifies himself – could never change, even if they wanted to: “No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.”7

Despite the experience of most mothers and fathers who have felt the deep connection between biological parents and their children, and all laws and cases recognizing that connection, Judge Walker declares there is no real benefit to biological parents: “[T]he court therefore rejects [the] conclusion that a biological link between parents and children influences children’s outcomes.”8 And to top it all off, “The gender of a child’s parent is not a factor in a child’s adjustment.”9

Lacking any grounding in reality, Judge Walker creates a straw man by looking at examples of adopted children or children who grew in single family households. But he builds his foundation on quicksand, because the fact that some adopted children are well-establish does not negate the many benefits of that awesome connection with a child’s biological parents.

Judge Walker’s standard apparently required supporters of traditional marriage prove that every child would turn out better with their biological parents, and the fact that some children exist who have done well despite a broken home or despite having homosexual parents proves beyond a reasonable doubt that the state has no rational basis for preserving marriage.

The “logic” does not past the laugh test.

But if there is no “rational” basis for preserving traditional marriage, why has society and legal precedent been so supportive throughout our history? Well, it’s the bigoted religions, according to Judge Walker. “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.”10

And that is a preview of what is to come for religious people, and Christians especially. If our beliefs “harm” other Americans, well, we must be stopped, right?

Judge Walker’s disgraceful opinion opens the door to many harmful things, like polygamy for example. He defines “sexual orientation” as “an enduring pattern of sexual, affectional or romantic desires for and attractions to men, women or both sexes.”11 So, if I am a bisexual man and I am in love with a man and a woman, why shouldn’t I have the chance to be “happy” and “fulfilled” like heterosexuals and homosexuals?

But Judge Walker’s most dangerous act is that of sanctioning the discrimination against Christians and other religious groups for what he views as their “harmful” beliefs.

Mock conclusions of law

In the end, no surprise to anyone, Judge Walker concludes that Prop. 8 is an unconstitutional violation of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. He effectively declares there is a fundamental right to marry whomever you wish, regardless of gender. So, homosexuals have a “fundamental” right to same-sex “marriage.” And bisexuals have the right to marry both a man and a woman if they want to. Yes, there can be no question that Judge Walker has opened the door for polygamy. He emphatically states that “marriage under law is a union of equals.”12

But the Judge wants you and me to know he is not creating a new right. He specifically rejects the idea of a right to same-sex “marriage,” opting to redefine the word marriage by judicial fiat to include everything. While that is very convenient, it’s not very clever, as everyone can see that he is creating a new right. It would be like him redefining the word “tree” to include cars in a law protecting trees from removal in a certain land. Judge Walker would be very comfortable arresting you for removing junked cars from the particular land: “I’m not creating new law, the word ‘trees’ include cars, it is very clear.”

Judge Walker carves into law his personal belief that “sexual orientation” is an immutable characteristic akin to race and therefore declares it a suspect class. As such, he then concludes the state cannot “discriminate” against them unless a compelling state interest is shown – in effect applying “strict scrutiny,” the highest level of scrutiny applied in our legal system. Although he is quick to point out that there is no “rational” basis for protecting marriage as the union between one man and one woman, the case would not survive even the most deferential level of scrutiny.

Of course, everyone knows it is “irrational” for us to want to promote stable marriages where the strong bond between parents and their children can nurture a stable environment for the child’s development.

This case was not about the usual “why-shouldn’t-homosexuals-be-able-to-visit-their-partner-in-the-hospital” line the media loves so much. In California, homosexuals have domestic partnerships that grant them the same rights as married couples, yet homosexual activists were not satisfied, and neither was Judge Walker:

A domestic partnership is not a marriage; while domestic partnerships offer same-sex couples almost all of the rights and responsibilities associated with marriage, the evidence shows that the withholding of the designation ‘marriage’ significantly disadvantages plaintiffs.13

And the next line used by Judge Walker explains a lot and should scare every American: “The record reflects that marriage is a culturally superior status compared to a domestic partnership.” You have to wonder what will happen after they have the word “marriage,” and marriage between a man and a woman is still viewed as “culturally superior.” Will some sort of affirmative action be need?

Where do we go from here?

The decision is already being appealed to the Ninth Circuit, where we hope the court promptly overturns this disgraceful decision. In doing so, the court should reprimand Judge Walker and make clear to all Americans that such conduct is not appropriate and cannot be tolerated in our legal system. If they do not, confidence in our judicial system will suffer a huge blow. More than it already has.

Remember, this one biased judge just overturned the will of over seven million Californians who voted to protect marriage as the union between one man and one woman. But his decision has implications for the entire nation. Thirty states have adopted some sort of marriage amendment already, another ten have some sort of defense of marriage legislation, and, of course, there is a federal Defense of Marriage Act. These laws are now in jeopardy because of the reckless, biased actions of this one judge.

After the Ninth Circuit, the case is expected to be appealed to the United States Supreme Court.

End Notes

  1. Phillip Matier and Andrew Ross, “Judge being gay a nonissue during Prop. 8 trial,” San Francisco Chronicle, February 7, 2010, available at:
  2. Hollingsworth v. Perry, 558 U.S. ___, 16 (2010).
  3. Video illustration available at:
  4. John C. Eastman, “Should judge have recused himself on Prop. 8,” San Francisco Chronicle, August 12, 2010, available at:
  5. Perry v. Schwarzenegger, No C 09-2292 VRW, 39 (N.D. Cal2010).
  6. Id at 50.
  7. Id at 74.
  8. Id at 45.
  9. Id at 95.
  10. Id at 101.
  11. Id at 71.
  12. Id at 113.
  13. Id at 116.