California marijuana initiative in trouble. Overreach by proponents?

A poll out on California Prop 19 initiative, legalizing marijuana in California, is behind in the polls. 51% oppose legalizing pot and 39% support it. Previously, polls were much closer.

According to a USC/Los Angeles Times Poll, 51 percent of likely voters said they would vote against Proposition 19, which would allow people 21 years-old or older to possess, cultivate, or transport marijuana for personal use. Thirty-nine percent of likely voters said they support the measure....

Proponents of Prop 19 say it would generate much needed revenue and cut drug enforcement costs. The California Attorney General's office estimated that the measure has the potential to bring in hundreds of millions of dollars annually in taxes and fees, while saving the state tens of millions of dollars annually on costs related to incarceration and supervision of marijuana offenders.

But opponents, including the U.S. Justice Department and former heads of the U.S. Drug Enforcement Administration, say the measure violates federal law and endangers public safety. U.S. Attorney General Eric Holder said last week that the Justice Department will continue to enforce federal law regardless of the outcome of the ballot initiative. Federal law prohibits individuals and organizations from possessing, manufacturing, or distributing marijuana for recreational use.

I think Californians realize the problems with marijuana more than any other state. They have the most lenient medical marijuana laws in the country. It's become a mess. If pot legalization goes down big time in California it isn't bode well for similar efforts elsewhere in the country.

Gay marriage, gay judge, and bias in the courtroom.

The three appear to have met up in the recent Prop 8 court decision by US District Court Judge Vaughn Walker who in an incredibly expansive decision ruled California's marriage amendment, Prop 8, unconstitutional.

It turns out that Judge Walker also misrepresented the defense counsel or as court observer Ed Whelan says used "distortions and falsehoods."

Among the many distortions and falsehoods that Judge Vaughn Walker has tried to propagate through his anti-Prop 8 ruling is his claim that the Prop 8 proponents—who intervened as defendants in the case and valiantly carried out the role of defending Prop 8 when the state defendants abandoned their duties to do so—“failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest.” (Slip op. at 11.) Walker’s claim, which many in the media evidently unfamiliar with the case have parroted, operates to divert attention from the manifest bias that he exhibited throughout the case and that pervades his ruling. But in fact the Prop 8 proponents offered a thorough case that Walker almost entirely ignored—a case resting on a broad array of judicial authority, recognized scholarship in various academic fields, extensive documentary evidence, and elementary common sense.

Here are some examples.

One stark illustration of Walker’s massive distortion on this broader matter is his assertion (slip op. at 9-10) that “When asked [during closing arguments] to identify the evidence at trial that supported [the] contention [that ‘responsible procreation is really at the heart of society’s interest in regulating marriage’], proponents’ counsel [Charles Cooper] replied, ‘you don’t have to have evidence of this point.’” The clear—and utterly misleading—implication that Walker tries to leave through his grossly out-of-context quotation is that the Prop 8 proponents did not offer meaningful (indeed, overwhelming) evidence and other authority on this point. And plaintiffs’ counsel Ted Olson has compounded the falsehood with irresponsible public statements like this (from his interview on “Fox News Sunday With Chris Wallace”):

In fact, they [Prop 8 proponents] said during the course of the trial they didn’t need to prove anything, they didn’t have any evidence, they didn’t need any evidence.

1. Let’s begin by putting Cooper’s statement in its proper context:

At the closing argument in June, Cooper began by stating that “the historical record leaves no doubt … that the central purpose of marriage in virtually all societies and at all times has been to channel potentially procreative sexual relationships into enduring stable unions to increase the likelihood that any offspring will be raised by the man and woman who brought them into the world.” (3028: 13-19.) Cooper cited numerous Supreme Court (and other) cases that reflect this understanding. (3027-3028.)

When Cooper stated that “the evidence shows overwhelmingly that … responsible procreation is really at the heart of society’s interest in regulating marriage” (3038:5-8), Walker asked, “What was the witness who offered the testimony? What was it and so forth?” (3038:14-15.) Cooper began his response:

The evidence before you shows that sociologist Kingsley Davis, in his words, has described the universal societal interest in marriage and definition as social recognition and approval of a couple engaging in sexual intercourse and marrying and rearing offspring.

Cooper then cited Blackstone’s statements—which were also in evidence submitted at the trial—that the relation of husband and wife and the “natural impulse” of man to “continue and multiply his species” are “confined and regulated” by “society’s interests”; that the “principal end and design” of marriage is the relationship of “parent and child”; and that it is “by virtue of this relation that infants are protected, maintained, and educated.” (3038-3039*.)

As Cooper proceeded to work his way through “eminent authority after eminent authority”—all in evidence submitted at the trial—Walker interrupted him to ask the bizarre question, “I don’t mean to be flip, but Blackstone didn’t testify. Kingsley Davis didn’t testify. What testimony in this case supports the proposition?” (3039:16-18.)

Cooper responded to Walker’s question:

Your Honor, these materials are before you. They are evidence before you.… But, your Honor, you don’t have to have evidence for this from these authorities. This is in the cases themselves. The cases recognize this one after another. [3039:19-3040:1]

Walker: “I don’t have to have evidence?” [3040:2]

Cooper: “You don’t have to have evidence of this point if one court after another has recognized—let me turn to the California cases on this.” [3040:3-5]

Note that only the underlined portion of the passage is what Walker quotes in his opinion.

Cooper then proceeded to present California cases stating (in Cooper’s words, which may include direct quotations not reflected in the transcript’s punctuation) that the “first purpose of matrimony by the laws of nature and society is procreation,” that “the institution of marriage … channels biological drives … that might otherwise become socially destructive and … it ensures the care and education of children in a stable environment,” and that (in a ruling just two years ago) “the sexual procreative and childrearing aspects of marriage go to the very essence of the marriage relation.” [3040]

2. Walker’s question—“What testimony in this case supports the proposition?”—wasn’t just flip. It was downright stupid—amazingly so, from a judge who has been on the bench for more than two decades. Even if one indulges the mistaken assumption that there was any need for a trial in the case (rather than its being disposed of, one way or the other, on summary judgment, with competing expert and documentary submissions), live witness testimony is merely one form of trial evidence. Exhibits submitted in evidence at trial are another form. And a judge is of course free to, and expected to, take judicial notice of certain facts.

3. In context, it’s clear that Cooper cited extensive evidence in the record, as well as relevant legal authorities, in support of the proposition that “responsible procreation is really at the heart of society’s interest in regulating marriage.” Indeed, the evidence that Prop 8 proponents submitted (and cited in their proposed findings of fact) in support of this heretofore obvious and noncontroversial proposition was overwhelming.

4. When Cooper stated “you don’t have to have evidence for this from these authorities”—Kingsley Davis and Blackstone and the other “eminent authorities” that Cooper was ready to discuss when Walker interrupted—and that the “cases themselves” “recognize this one after another,” it’s crystal-clear in context that he wasn’t contending that he hadn’t provided evidence or that he didn’t need to provide evidence or other authority. He was merely making the legally sound observation that the many cases recognizing the procreative purpose of marriage were an alternative and additional source of authority for the proposition.

But you wouldn’t know any of this from Walker’s highly distorting clip of Cooper’s statement—or from Olson’s contemptible misrepresentation of it, or the media’s mindless parroting of it.

Walker’s outrageous distortion on this point isn’t an aberration. As I will show when I have time, it’s representative of his entire modus operandi throughout his ruling.

* It’s not apparent from the transcript which portions of these quotations are directly from Blackstone and which involve Cooper’s linkages. In quoting the transcript in this post, I’ve also corrected obvious typographical errors that the transcriber made (e.g., “principle” for “principal” and “imminent” for “eminent”). All emphases are mine.

Then there is the issue of Judge Walker being biased based on his being gay. Whelan in another post notes that Walker was not forthcoming on possible personal biases.

In an important op-ed in the San Francisco Chronicle, law professor John Eastman argues that Judge Vaughn Walker was obligated either “to disqualify himself or at least to disclose his potentially disqualifying relationship to the parties”—and that, under Supreme Court precedent, his failure to do so “requires that the opinion in the case be vacated and a new trial conducted before a different judge”:

In Liljeberg vs. Health Services Acquisition Corp., the Supreme Court held that the original judgment had to be set aside even when the disqualifying relationship only became known to the parties 10 months after the judgment entered in the case had been upheld on appeal.

As I’ve discussed, whether Walker’s recently reported same-sex relationship requires his recusal may well depend on facts that Walker has not seen fit to disclose. It’s the usual practice for a judge to advise parties at the outset of a case of information that might give reasonable cause to question the judge’s impartiality. Walker’s failure to do so would seem yet further evidence of Walker’s manifest inability to be impartial.

This raises fundamental questions about character. The founding fathers thought private behavior was linked to public activity. For instance, Noah Webster author of Webster’s Dictionary and an American statesman wrote in reference to moral behavior and the presidency that:

[A]ll history is a witness of the truth of the principle that good morals are essential to the faithful and upright discharge of public functions. The moral character of a man is an entire and indivisible thing—it cannot be pure in one part and defiled in another. A man may indeed be addicted, for a time, to one vice and not to another; but it is a solemn truth that any considerable breach in the moral sense facilitates the admission of every species of vice.

What Webster is saying is that one’s private moral character is indivisible from one’s public conduct. In other words, one can’t compartmentalize one’s life. It's reasonable to draw a connection between Judge Walker's public conduct as a judge and his persona identification with an immoral sexual behavior.

Overreach on by federal judge in Prop 8, even for gay activists?

There's a lot of discussion about the gay Federal District Court Judge Vaughn Walker's decision in California striking down California' s pro-marriage, Prop 8 initiative. The case will be appealed to the 9th Circuit and almost certainly come before the US Supreme Court.

What some observers are noting is the breathtaking reach of the judge's ruling.

University of Minnesota law prof Dale Carpenter, a gay activist who supports homosexual marriage, had some interesting thoughts on the courts decision at "The Volokh Conspiracy." He writes:

"But my concerns about this decision outweigh what I see as its merits. In reading so far, I think a notable feature of Judge Walker’s decision is its judicial maximalism — a willingness to reach out and decide fundamental constitutional questions not strictly necessary to reach the result. It is also, in maximalist style, filled with broad pronouncements about the essential characteristics of marriage and confident conclusions about social science. This maximalism will make the decision an even bigger target for either the Ninth Circuit or the Supreme Court. If that’s right, it magnifies the potential for unintended and harmful consequences for gay-rights claims even beyond the issue of marriage. Think of a possible (but milder) anti-SSMBowers v. Hardwick, which had consequences far beyond the constitutional affirmation of sodomy laws. version of

Walker is the first federal judge to hold that states must recognize same-sex marriages. By doing so, he eschewed a potentially narrower ruling striking down only Proposition 8, which had been suggested by some commentators. Such an alternative ruling would have focused on what critics regarded as the “animus” behind the passage of Prop 8. In theory, it would have left states free to retain traditional definitions of marriage not reinforced by passion-driven plebiscites. I think a narrow, strictly anti-Prop 8, decision would have tried to thread too thin a needle, but it was an option. Walker mentions anti-gay sentiment in the Prop 8 campaign, especially highlighting the shameful and misleading ads supporting it, but that is not the basis for his decision.

Instead, finding a federal right to same-sex marriage itself, Walker leans on not one but two prominent constitutional arguments. First, he says that the fundamental right to marriage protected by the Due Process Clause includes the right to choose the sex of one’s mate. That’s because, he writes, sex-based classifications in marriage have long since been stripped away. The ban on same-sex marriage is the vestige of discredited and long-abandoned sex discrimination in marriage.

Few courts upholding a right to SSM have used a fundamental-rights rationale (not even the original SSM decision, Goodridge, did so). It’s an aggressive claim, especially given the composition of the federal courts and the Supreme Court. I see little enthusiasm in this Court for expanding fundamental rights. If the Ninth Circuit and/or Supreme Court decide to reverse Walker’s ruling, they will be more likely to deal with this issue in a way that will set broader precedent. A minimalist decision for SSM by Walker could have left this matter undecided and thus would not have forced a higher court’s hand.

Second, Walker held that the ban on gay marriage violates the Equal Protection Clause. The interesting question is why. In part of Walker’s opinion, he accepts the case for heightened scrutiny of classifications based on sexual orientation and asserts that denying marriage to same-sex couples is a form of sexual-orientation discrimination (and sex discrimination, which is related).

But he then concludes that because laws limiting marriage to opposite-sex couples are not rational, “the court need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review.” If that’s true, why address the issue at all? He may be hoping, in maximalist fashion, to lay some foundation for future courts to apply strict scrutiny to sexual-orientation discrimination. But at the same time, leaving the intellectual structure unfinished, he invites a higher court to undermine it.

Walker then rejects as irrational each of the reasons offered for Prop 8, including tradition, procreation, and the need to proceed cautiously and incrementally on matters involving important social change. The biggest difficulty with his argument on these matters, as I see it, is that he thinks of gay marriage as a technical change in the law about which there is no need to proceed cautiously. California has enough printers and paper to issue the additional marriage licenses, so what’s the big deal?

The decision, as I read it, relies directly or indirectly upon every prominent constitutional argument for SSM. One could say this is a strength of the decision. If a higher court doesn’t like one reason, it might accept another. But it is also a weakness of the decision, from a gay-rights litigation perspective, since it invites a higher court to address them all if it decides to reverse the result. A sweeping victory becomes a sweeping defeat.

Judge Walker, I am sure, would deny that his decision is maximalist. SSM, he assures us, is not a “sweeping” change. Furthermore, his decision is couched in the lop-sided evidence presented at trial about marriage and the potential consequences of recognizing SSM. By my count, he uses the word “evidence” 54 times in the “Conclusions of Law” section alone. This evidentiary reliance will be used to try to insulate the decision from meaningful appellate review. The evidence just leads us, inescapably, to the conclusion that SSM is a neutral or even good thing. What’s more, the evidence is so one-sided that judges are entitled to say so as a matter of constitutional law. But I have never been convinced that the issue of gay marriage would be decided, in courts at least, by a battle of expert witnesses in the way we might decide whether a Pinto is unreasonably dangerous.

Gay-rights groups, you may recall, initially opposed the Prop 8 litigation on the grounds that it was too much, too soon. Though they are publicly celebrating this ruling, I imagine in the background there is considerable unease about what happens next. The Supreme Court, they reasoned in early 2009, was not ready to declare a right to SSM. Premature litigation, they feared, would do more harm than good (even if there were a temporary win at a lower level). Well, nothing has changed except that the stakes have been considerably raised today in a maximalist decision, bringing us one step closer to Perry v. Schwarzenegger, ___ U.S. ___ (201_) (reversing lower court ruling for same-sex marriage on due process and equal protection grounds).

Of course, the question will be which direction Justice Kennedy will go on this case. Maybe Carpenter is right and the overreach by Judge Walker will be too much for Kennedy to swallow in addition to the realization that overturning 30 plus state marriage amendments is a bit too much.

Whatever happens the cultural divide is only widening and deepening in our nation.

The battle is joined. Pro-homosexual marriage judge goes after DOMA.

The battle over marriage in our nation was taken to another level with the ruling by a federal judge in Boston that the federal law defining marriage as one man and one woman is unconstitutional.

Professor Hadley Arkes says the judge's reasoning was weak.

Judge Tauro accomplishes this task by essentially presupposing the most decisive points that he should have been obliged to establish in an argument. A good third of the judge’s opinion was spent in showing all of the benefits that would be denied to spouses of same-sex couples in the federal government. They would be denied those benefits simply because Congress, which has the sole authority to legislate the federal code, stipulated that every reference to marriage in that code would be a reference to a legal union of a man and a woman. And yes, the consequence of that stipulation in the meaning of marriage does mean that no companion of the same sex can have the standing of a spouse to receive benefits in the form of retirement, pension, medical care, to the extent those benefits are conferred on spouses and members of the legal “family.”

But to compile the litany of benefits foregone is not to make the case that they have been withheld wrongly, without justification. An argument must be supplied. Judge Tauro wanted to argue that the withholding of benefits was illegitimate because the distinction between a marriage composed of a man and a woman, and a marriage composed of people of the same sex, is an illegitimate, unjustified distinction. For Judge Tauro that distinction treats differently people who are in the same situation — i.e., people who claim to be married, as indeed they may claim right now under the laws of Massachusetts.

I find it curious that advocates argue there is no rational basis for defining marriage as one man and one woman. Ignored are the facts that children do do better with their mother and father. That homosexual unions are notoriously unstable and don't provide a good environment for raising children. That society's weaken and decline when the sexual mores are loosened. That homosexual behavior is inherently unhealthy and granting it marital status is putting the state's stamp of approval on unhealthy activities. All conveniently ignored.

Expect another shot at marriage when the federal judge hearing the challenge to Prop 8 in California comes out with his expected pro-homosexual marriage ruling shortly. These decisions will no doubt help make marriage a political issue in the fall's elections across the country.

Homosexual marriage supporters will stop at nothing, it seems, to get their way in California

Homosexual marriage supporters in California will stop at nothing, it seems, to see homosexual marriage foisted on that state. From using four liberal judges of their Supreme Court to impose a radical redefinition of marriage on that state to now playing games with the voter initiated constitutional marriage amendment.

The latter example is Attorney General Jerry Brown's decision to change Prop 8's original ballot title from "Amends the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California." to "Changes California Constitution to eliminate right of same-sex couples to marry. Provides that only a marriage between a man and a woman is valid or recognized in California. Fiscal Impact: Over the next few years, potential revenue loss, mainly sales taxes, totaling in the several tens of millions of dollars, to state and local governments. In the long run, likely little fiscal impact to state and local governments."

Talk about bias and blatant efforts to mislead voters.

For one there is no right to homosexual marriage. Marriage is rooted in the created order, in our nature. As the founder's said in the Declaration of Independence, our Creator endows us with rights not the judiciary or legislature.

And the assertion that the fiscal impact of not allowing homosexual marriage means losing tens of millions of dollars is totally unsubstantiated. The opposite is more likely true if people are less likely to visit California, because they sanction homosexual marriage, or people and businesses start leaving the state because of the presence of homosexual marriage.

If the Prop 8 title description isn't reversed then pro-marriage amendment advocates will just have to redouble their efforts. Much more is at stake than simply allowing a few homosexual couples to say they are married. The moral and social welfare of California is at stake.