Skip to comments.Analysis of DOMA and Prop 8 Supreme Court rulings: What happened and why -- and what's next
Posted on 06/28/2013 9:41:25 PM PDT by BurningOak
We are reluctant to sound unkind to the pro-family legal people who worked hard on these cases. But this is such a horrible outcome that something must be said.
Both of these cases suffered from an unaggressive and short-sighted approach that bordered on incompetence. The pro-family side did not present a credible case in either of these cases. They were deathly afraid that telling the truth about homosexuality might offend someone. By not effectively countering the absurd arguments and assumptions by the homosexual movement, they made it easy for the judges to rule as they did.
In the Federal District Court case in 2010 the homosexual lobby's lawyers bombarded the court with their well-honed talking points on "marriage", "family", the welfare of children of same-sex couples, and the like. They portrayed same-sex "marriages" as natural constructs that conservatives don't happen to like.
But as we reported at the time, the pro-family lawyers refused to consider using the medical and psychological dangers and moral issues surrounding homosexuality as counter-arguments. Instead they came up with soft arguments like "every child needs a father and a mother." In fact, the lawyers on our side accepted California's civil union law, which allows homosexual "parenting," as a legitimate compromise. This made their "mother and father" argument impossible to defend.
The handling of the case was so bad that the Federal District Court judge -- the "out" homosexual -- rebuked the pro-family lawyers for the lack of evidence they presented! It was almost as if the judge had no choice but to rule against us, based on what he had to work with.
When it got to the Supreme Court, it was no better. Our lawyers gave no credible reasons why same-sex couples should be treated differently, nor did they point to the immorality or destructiveness of that "lifestyle".
Political correctness prohibits us from having frank discussions about the homosexual lifestyle, or about how homosexuality is not “normal” so to speak.
I agree. The soft approach doesn’t work. It doesn’t mean a nasty horrid one does but what about simply a competent truthful one? Gays especially male homosexuals are at increased health risk not because of some bigotry or hate crimes but because of their behavior and the nature of their sexual relations but of course it isn’t just homosexuality. Sexual promiscuity adds huge risk of serious disease all by itself but many are also reluctant to address that end of things as it has become more acceptable.
These sex issues have consequences. Already we are seeing huge increases of sex abuse in the military post DADT repeal. It was always there and ignored but now male on male assault is 53% of all assaults but is talk radio even reporting on it? Is Rush, is Levin, is Savage, is Beck? No they are in speak no evil of homosexuality mode. They don’t want to take the heat. What in the hell is wrong with conservative media people? They scream and yell about the result of DOMA and Prop 8 while they remained nearly silent in the years leading up to it. We are just going to have to build our own networks. Something where conservatives can truly address the issues they care about in a credible way where they aren’t shouted down and aren’t forced to acquiesce to leftist false premises as if what they are saying is something outrageous when what it is simply commonsense.
I noticed that too. Talk radio has all but stopped talking about homosexual marriage.
After the initial court decision in Massachusetts forcing homosexual marriage in 2003, talk radio was all over this subject. In recent years, there have been other court cases in other states, and a few states voting legislatively to allow homosexual marriage. But talk radio didn’t cover the issue much in recent years.
Talk radio may be afraid of the homosexual mafia, perhaps?
The GOP-e is backing gay marriage. McCain strategist and Palin character assassin Steve Schmidt is running a $10 million PR campaign for ACLU. An insidious full-page ad intended for red-staters was in Friday WSJ. They stress themes of freedom and the Golden Rule (without calling it that). Interesting watching Alinsky propaganda twisted to attract us.
the Prop 8 ‘defense’ was truly awful. I said so at the time. That said John Walker’s rationale was full of holes. It really doesn’t matter since those defending Prop 8 evidently had no ‘right’ to do so. What should’ve happened is Arnold/Brown/Harris should’ve appealed on behalf of CA voters and then the matter could’ve been directly addressed by the Supreme Court.
To all Californians: If homosexuals say they were married in CA look them straight in their faces and tell them they are not married. They will show a so called license. To that, show them the results of the election that said voters voted for marriage the way God intended it...between one man and one woman so this is a phony license & it will forever be rejected by the CA’s who voted against it. Because any acceptance of this is now a farce. It would still be a farce if CA’s had voted for it since God created marriage. He is the only one who could ever change the definition. But now it is a double farce because God doesn’t accept it (which is good enough for me,) but also, Californian voters don’t honor it either. And this is a liberal state and these voters didn’t approve it.) Mr. Jerry Brown can try to do whatever he wants even though he didn’t listen to the will of the people. But calling all Californians.... stand up! Do not honor this license. Farse! Farse! Farse! Spread the word! It’s very late but while driving home, I heard on the news people celebrating that they were now “married”. They are not. Spread the word. Don’t let this lie spread that they are married. It is phony baloney and they are not married.
Of course they are.
Gay marriage AND OBamaCARE were first imposed by the GOP.
Proposition 8 and DOMA were not well-defended but this piece is quite wrong. Homosexuality being inferior or even immoral was ruled out as a permissible basis of policy by Roemer v Colorado and Lawrence v Texas. Opponents of gay marriage had to argue from a different posture and privileging the ability of natural reproduction which is unique to some heterosexual unions was not an unreasonable basis. However, post Windsor, it is apparent that the majority of the Supreme Court believes there is no acceptable basis for denying gays the ability to marry. It will be quite difficult to defend any laws prohibiting gay marriage going forward; it wouldn’t surprise me to see future cases disposed of on summary judgment.
The problem with the article as it concerns Supreme Court's decision about Prop. 8 is the following imo. The article overlooks that by effectively throwing the proposition out, pro-gay activist justices and judges are unsurprisingly taking advantage of the fact that most citizens, and evidently some lawyers, don't know the Constitution and its history.
The following information from a related thread shows that pro-gay activist judges in California inappropriately used PC interpretations of the equal protections clauses in both federal and state constitutions in order to argue that Prop. 8 was unconstitutonal. To understand the constitutionality of Prop. 8, please consider the following.
First, note that the equal protections clause in the California constitution is expressly based on the equal protections clause of Sec. 1 of the 14th Amendment.
ARTICLE 1 DECLARATION OF RIGHTS(See SEC. 7. (a))
However, there is glaring evidence in the federal Constitution that John Bingham, the main author of Sec. 1, had never intended for the equal protections clause to be applied the way that pro-gay California judges have applied it to Prop. 8.
More specifically, if the equal protections clauses of the federal and California state constitutions were intended to be understood the way that California judges have applied them to Prop. 8, there would have been no need for the states to have subsequently ratified the 15th, 19th, 24th and 26th amendments to the Constitution, these amendments establishing voting protections based on specific criteria.
In other words, today's activist judges would be forced to argue that the equal protections clause in Sec. 1 of 14A automatically established voting protections which actually weren't considered protected until expressly protected by the later amendments referenced above.
In fact, noting that the 19th Amendment was ratified to prohibit federal and state governments from prohibiting otherwise qualified voters from voting on the basis of sex, please consider the following. Prior to the ratification of 19A, the Supreme Court had decided in the case of Minor v. Happersett that the states could prohibit citizens from voting on the basis of sex regardless of 14A's equal protections clause. And similarly as 10A-protected state laws had prohibited otherwise qualified voters from voting on the basis of sex, legal majority California voters had likewise prohibited constitutionally unprotected gay rights concerning marriage by using the 10A-protected power of the people to approve Prop. 8.
So where the equal protections clause of Sec. 1 of 14A and the California constitution versus the 15th, 19th, 24th and 26th Amendments is concerned, what equal protections actually means is the following imo. Simply put, states can make laws which discriminate on the basis of criteria which are not expressly protected by the Constitution, as long as such laws are applied equally to everybody affected by constitutionally unprotected criteria.
Again, pro-gay activist California judges inappropriately based their application of the equal protections clauses in both federal and state constitutions on PC interpretations of these clauses, the judges essentially pulling the wool over the eyes of Constitution-ignorant citizens.
Next, the following information from another related thread shows that the response of pro-gay activist justices to Prop. 8 wrongly ignored Supreme Court case precedent for the following reason. Activist justices declared that private citizens don't have the standing to have their cases heard by the Supreme Court.
But you're probably not going to hear from Obama guard Fx News concerning the Supreme's lame excuse for not hearing the Prop. 8 case is the following. To begin with, the Founding States had made Clause 2 of Section 2 of Article III to clarify that the Supremes have original jurisdiction in any case where a state is a party as is the case with the Prop 8 case.
Article III, Section 2, Clause 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction (emphasis added). In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
In fact, the 11th Amendment was ratified in response to the Supreme's decision in Chisholm v. Georgia, a case where private citizen had successfully sued a state that he was not a citizen of.
11th Amendment: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Note that 11A does not prohibit private citizens from having the Supremes hear a case when suing the state in which they are a citizen. In fact, a good thing later resulted from a Supreme Court case in which a citizen sued her state.
More specifically, the Supremes had actually decided against private citizen Virgnia Minor's argument in the case of Minor v. Happersett that her citizenship automatically entitled her to vote regardless of a state law which allowed only qualified men to vote. But fortunately for Minor, the states subsequently ratified 19A which prohibits the states and feds from prohibiting otherwise qualified citizens to vote on basis of sex.
So based on Supremes' constitutionally indefensible excuse not to hear private citizens argue their side of the Prop. 8 case against California, the Supremes are as corrupt as California judges and the other two branches of the unconstitutionally big federal government imo.
The bottom line concerning federal and state judicial activism the following. Not only do patriots in California need to impeach their state's judges, but patriots need to win majority control in both Houses of Congress in 2014 and impeach Obama and Constitution-ignoring justices.