Every legal expert in America knows that the battle over marriage has just begun–everyone, it seems, but Judge Vaughn Walker. Now that he’s overturned Proposition 8, Walker says our side has suddenly lost their standing to appeal. To people familiar with the courts and the appellate process, that statement is totally absurd. If the proponents of Prop 8 didn’t have standing, there wouldn’t have been a trial in the first place! A judge can’t strip away a group’s standing when it’s convenient for him. As an open homosexual, I’m sure that Walker would like nothing better than to say, “Case closed!” But that’s not the way our legal system works. If a team of attorneys has standing to defend Proposition 8, then surely they have a right to appeal a ruling abolishing it.
The bottom line: Walker needed someone to challenge this amendment so that he could overturn it. Now that he’s imposed his beliefs, he’s trying to make defenders of marriage powerless to fight them. ” … Judge Walker shouldn’t be able to have it both ways,” Ed Whalen writes in his latest post on NRO. “If Prop 8 proponents had an interest under state law sufficient to enable them to intervene as of right to offer the only actual defense of Prop 8… then they have a right to pursue an appeal of his adverse judgment.” Of course, this shouldn’t surprise us in the current judicial climate. The courts are trying to rewrite the laws, so it stands to reason that they would rewrite the process too.
While Walker churns out decision after legally incoherent decision, there may be a bigger issue in California than the courts–and that’s the state’s out-of-control leadership. Californians wouldn’t be in this position if there weren’t a state of utter lawlessness in the state’s executive branch. From Governor Arnold Schwarzenegger on down, there has been a consistent refusal to defend this law in court. Let me be clear. Regardless of how the Governor or Attorney General Jerry Brown feel about Proposition 8, they are duty-bound to protect it. (The same is true of President Obama’s Justice Department and the Defense of Marriage Act.) These leaders can’t pick and choose which parts of the constitution they uphold, as if they were working off an a la carte menu. Once the definition of marriage becomes a part of the state’s constitution, their role in preserving it is non-negotiable. What makes the administration’s position even more outrageous is that it is not only refusing to fight for the state’s laws–but actively lobbying against them! That makes this issue much bigger than the sanctity of marriage. Unless voters rise up and demand some accountability, then they risk losing not just marriage, but every possible freedom.
“What Judge Walker’s ruling means is you can sponsor a proposition, direct it, research it, work for it, raise $40 million for it, get it on the ballot, successfully campaign for it, and then have no ability to defend it in court,” says law professor Dale Carpenter. “And then a judge [allows you to] be the sole defender in a full-blown trial and then says, ‘By the way, you can never defend this.'” Like his opinion, Judge Walker wants to put the challenging of his ruling “beyond debate.” Well, Judge Walker, this is still America. And we still have a voice–at least for now.