The price of citizenship? Um, no

From Alliance Defending Freedom:

The following quote may be attributed to Alliance Defending Freedom Senior Counsel Jordan Lorence regarding the New Mexico Supreme Court’s decision Thursday in Elane Photography v. Willock, a case involving a photographer who declined to use her artistic expression to visually portray the story of a same-sex ceremony between two women who later sued after finding another photographer:

“Government-coerced expression is a feature of dictatorships that has no place in a free country. This decision is a blow to our client and every American’s right to live free. Decisions like this undermine the constitutionally protected freedoms of expression and conscience that we have all taken for granted. America was founded on the fundamental freedom of every citizen to live and work according to their beliefs and not to be compelled by the government to express ideas and messages they decline to support. We are considering our next steps, including asking the U.S. Supreme Court to right this wrong.”

Bosson

Select excerpts from Justice Richard C. Bosson’s concurrence accompanying the court’s decision (p. 30):

“…the Huguenins…now are compelled by law to compromise the very religious beliefs that inspire their lives. Though the rule of law requires it, the result is sobering. It will no doubt leave a tangible mark on the Huguenins and others of similar views.”

“On a larger scale, this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less. The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.”

“In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship. I therefore concur.”

Well, Judge Bosson, "with the utmost respect," your opinion is nothing short of disgraceful, deplorable, and despicable. Compromise of one's deeply held religious beliefs is the price of citizenship? Um, no! What part of "Congress shall make no law respecting the establishment of religion, nor prohibiting the free exercise thereof" do you not understand?

Judge Bosson, the freedom to exercise our deeply held religious beliefs is the singular most sacred benefit of citizenship!

Further commentary would be superfluous.

So much for judicial sanity

A few days ago, I observed, along with R.R. Reno, that several recent court rulings on religious liberty might be the harbinger of a season of judicial sanity. Unfortunately, the Ninth Circus Court of Appeals didn't get the memo.

California’s voter-approved ban on same-sex marriages is unconstitutional, according to a ruling announced Tuesday by an appeals court.

The long-awaited ruling by the U.S. 9th Circuit Court is likely to lead to more appeals, and marriages probably will remain on hold until that process ends.

The case was pending for months because the court wanted a ruling from the state Supreme Court on whether proponents of Proposition 8 had legal standing under the state’s citizen’s initiative process to appeal the ruling.

Make sure you understand what has just happened here. A voter-approved constitutional amendment has been declared unconstitutional. No, it's not judicial activism; it's judicial tyranny of the worst kind.

Whelan: The most egregious performance ever by a federal district judge

In a scathing critique for National Review, Ed Whelan exposes what should already be obvious: the blatant bias of Judge Walker and his egregious acts of malfeasance in handling the Prop 8 case.

Take the incredibly intrusive discovery, grossly underprotective of First Amendment associational rights, that Walker authorized into the internal campaign communications of the Prop 8 sponsors. That ruling was overturned, in part, by an extraordinary writ of mandamus issued by a Ninth Circuit panel consisting entirely of Clinton appointees. But the portion that survived enabled plaintiffs to conduct scorched-earth discovery that leveraged the massive resource advantage provided by their lavish Hollywood backers. And the sweeping judicial invasion of the core political speech rights and associational rights of Prop 8 supporters had the added benefit, from Walker’s perspective, of intimidating opponents of same-sex marriage from ever daring to exercise those rights again.

Then there’s Walker’s resort to procedural shenanigans and outright illegality in support of his fervent desire to broadcast the trial, in utter disregard of (if not affirmatively welcoming) the harassment and abuse that pro-Prop 8 witnesses would reasonably anticipate. Walker’s decision was ultimately blocked by an extraordinary (and fully warranted) stay order by the Supreme Court in an opinion that was plainly a stinging rebuke of Walker’s lack of impartiality:

The District Court 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 issue. If courts are to require that others follow regular procedures, courts must do so as well.

Then Walker presided over a parade of anti-Prop 8 witnesses at trial who gave lengthy testimony, only a tiny fraction of which was relevant to any sound understanding of the issues in dispute—and all of that could have been in the form of expert or documentary submissions. And—surprise, surprise—every single one of plaintiffs’ “expert” witnesses is an activist for same-sex marriage whose “expert” testimony was just a repackaging of their political advocacy.

Oh, and let’s not forget that all along Walker apparently failed to disclose to the parties basic personal facts that would have enabled them to assess whether his impartiality in the matter might reasonably be questioned.

Then there’s Walker’s crazed—and, as one same-sex marriage advocate put it, “radical”—ruling on final judgment. That ruling ignored binding Supreme Court and Ninth Circuit precedent, concocted absurd factual findings, and grossly misstated the state of the record on key points.

And, just yesterday, Walker’s refusal to stay his judgment pending appeal, the latest step in his gamesmanship to try to deprive Prop 8 proponents of their appeal rights and to avoid effective appellate review of his shenanigans.

Franck: Same sex marriage and the assault on moral reasoning

According to one legal scholar on the board of First Things calls Matthew Franck's piece on Judge Walker's decision "by far the best op ed piece I've seen on the Prop 8 ruling. He may very well be right.

Perhaps the most surprising thing in the judge’s opinion is his declaration that “gender no longer forms an essential part of marriage.” This line, quoted everywhere within hours with evident astonishment, appears to be the sheerest ipse dixit—a judicial “because I said so”—and the phrase “no longer” conveys that palpable sense that one is being mugged by a progressive. But Judge Walker’s remark here is actually the conclusion of a fairly complex argument. The problem is that the argument is not only complex but wholly fallacious.

Judges, especially those of the lower courts, know that their innovations in constitutional law are best armored by an appearance of continuity with history and precedent. And so Judge Walker begins by reminding us that the right to marry has long been considered “fundamental” in our jurisprudence. And so it has, for those—namely couples of men and women—considered capable of entering into the relationship of marriage. Are the same-sex plaintiffs in the Perry case asking then for a “new” right, or for admission without unjust barriers of discrimination to the enjoyment of an old one? At first glance it looks like the first of these is the case. But any road that leads to the second conclusion will be smoothest for the judge-advocate’s purposes, since it will provide that much-desired appearance of continuity with the law’s long history.

Yet how to pave that road? By distinguishing between the “core” attributes of the institution of marriage and those that are only incidental, those historical attributes that have been abandoned without harm to what is essential about marriage. Many American states, for instance, once considered race an important attribute, so that racial difference was a barrier to the formation of a marriage. But race is now universally understood not to matter, and the Supreme Court even said in 1965 that the Constitution did not tolerate such a legal rule.

By the same token, says Judge Walker, the doctrine of coverture, in the common law, in which a wife’s legal identity was subsumed by that of her husband as the superior partner in the marriage—that too has been abandoned by a more modern understanding of the sexes as equal partners. Thus, concludes the judge, there has been a “movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles.” And this has not been an essential change in the “core” of the marriage institution, but merely a shedding of an extraneous characteristic, thanks to “an evolution in the understanding of gender.”

And now watch carefully, for here the fallacious reasoning enters the equation. When “the genders” are no longer “seen as having distinct roles,” it is revealed that at marriage’s “core” there is ample space for same-sex couples too. Since “gender no longer forms an essential part of marriage,” indeed since it never really did, “plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States.” There, you see? There is something eminently conservative about the admission of same-sex couples to the marital bond. What could we have been thinking, denying them this right for all these centuries?

Judge Walker seems to have committed the fallacy of composition—taking something true of a part and concluding that it is also true of the whole of which it is a part. If it is true that “gender” no longer matters as it once did in the relation of husband and wife, he reasons, therefore it no longer matters whether the relation is one of husband and wife; it may as well be a relation of husband and husband or of wife and wife, since we now know that marriage is not, at its “core,” a “gendered institution.” But restated in this way, it is quite plain that the judge’s conclusion doesn’t follow from his premises. To say that the status of men and women in marriage is one of equal partners is not to say that men and women are the same, such that it does not matter what sex their partners are. The equalization of status is not the obliteration of difference, as much as Judge Walker would like to pretend it is.

Mohler: Prop 8 Judge displays undue animosity toward religious views

Albert Mohler weighs in on Judge Walker, pointing out some of the most troubling aspects of his twisted legal reasoning.

Anyone who reads Judge Walker’s decision will see that the normalization of homosexuality was one of his major concerns. Any belief that heterosexual relations are morally superior to homosexual relations “is not a proper basis on which to legislate,” he asserted. Proposition 8, he insisted, “was premised on the belief that same-sex couples simply are not as good as opposite-sex couples.” The judge claimed to have “uncloaked” the real reason California’s voters adopted Proposition 8 — “a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples.”

The judge released enumerated “findings” within his decision. Among the most important — and startling — of these are the following:

“Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.”

“Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted.”

“The gender of a child’s parent is not a factor in the child’s adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent.”

“Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.”

In a breathtaking and brief sentence, Judge Walker asserted: “Gender no longer forms an essential part of marriage; marriage under law is a union of equals.”

Until this verdict, such language had never appeared in a decision of a Federal court. If gender is no longer “an essential part of marriage,” then marriage has been essentially redefined right before our eyes.

The religious liberty dimensions of the decision are momentous and deeply troubling. While Judge Walker declared that the religious freedoms of citizens and religious bodies were not violated because no such body is required to recognize or perform same-sex marriage, the very structure of his argument condemned religious and theological objections to homosexuality and same-sex marriage as both harmful and irrational.

Beyond this, Judge Walker claimed to read the minds of California’s voters, arguing that the majority voted for Proposition 8 based on religious opposition to homosexuality, which he then rejected as an illegitimate state interest. In essence, this establishes secularism as the only acceptable basis for moral judgment on the part of voters. The judge’s statements condemning religious opposition to homosexuality speak for themselves in terms of animus.

Stupid quote of the day, with comment for a change

All you need to know about the mindset of Judge Vaughn Walker, who ruled today that California's constitutional ban on same sex "marriage" is, well, "unconstitutional," is revealed in this one sentence from his decision.

Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

Um, no. Marriage is a union two persons, one man and one woman, becoming one flesh. That, of course, is the biblical definition in which I'm sure Judge Walker is not particularly interested. The fact that it is consistent with the definition of marriage recognized by every human civilization--Christian, pagan, or what have you--for at least the last 5,000 years of human history probably wouldn't impress him, either. This judge is not interested in honoring the principles of constitutional government, natural law, or civilized society itself. He is only interested in imposing a destructive agenda which is antithetical to all three.

Yes, I can know all this about him based on that one sentence.

UPDATE: Press release from the United States Conference of Catholic Bishops, noting that the judge in this case has ventured into an area well outside his jurisdiction:

WASHINGTON-Cardinal Francis George, President of the United States Conference of Catholic Bishops, decried the August 4 decision of a federal judge to overturn California voters’ 2008 initiative that protected marriage as the union of one man and one woman.

“Marriage between a man and a woman is the bedrock of any society. The misuse of law to change the nature of marriage undermines the common good,” Cardinal George said. “It is tragic that a federal judge would overturn the clear and expressed will of the people in their support for the institution of marriage. No court of civil law has the authority to reach into areas of human experience that nature itself has defined.”

Joining Cardinal George in his criticism of the court decision was Archbishop Joseph Kurtz, Chair of the Ad Hoc Committee for the Defense of Marriage. Archbishop Kurtz noted that “Citizens of this nation have uniformly voted to uphold the understanding of marriage as a union of one man and one woman in every jurisdiction where the issue has been on the ballot. This understanding is neither irrational nor unlawful,” he said. “Marriage is more fundamental and essential to the well being of society than perhaps any other institution. It is simply unimaginable that the court could now claim a conflict between marriage and the Constitution.”

UPDATE 2: William Duncan at National Review says Walker's decision is "not anchored in reality."

The court’s legal premise is pretty novel. Judge Walker rules that laws reflecting the understanding of marriage as the union of a man and a woman violate the Fourteenth Amendment’s due-process and equal-protection clauses. That is to say, he believes Proposition 8 took away a fundamental right and singled out a protected class for unfair treatment. The bottom-line conclusion in support of both legal theories is that California voters could have had no motive in supporting Proposition 8 other than a desire to signal that people who identify as gay and lesbian are inferior to heterosexuals. This is deeply problematic on at least two levels.

First, none of the testimony in the trial showed (nor could it have shown) the voters’ subjective intent in approving the measure. A corollary point is that the question is entirely irrelevant. If voters pulled the lever for that law because they liked the number 8, or because they have atavistic hatreds, or because they really believe that marriage between husband and wife is a uniquely valuable institution though they have no problem with their gay and lesbian neighbors, it is hard to imagine what those intentions could have to do with whether the law they approve accords with the Constitution. It is worth noting that, since California gives all the benefits of marriage to same-sex couples through another legal status, the idea that most or even many voters were acting out of hatred is pretty unlikely.

The second, more fundamental problem stems from the reality that marriage has always been understood, with very few exceptions, as the union of a man and a woman. This is true across time, across cultures, across religious traditions, etc. Does it really seem likely that this remarkable consensus is nothing but a nasty desire of one group to flaunt its privileged position over a minority? Is it really feasible that the world’s cultures all consulted about how to put down gay people and came up with marriage as the solution? Judge Walker seems to think gender and children have nothing to do with marriage; the facts suggest precisely the opposite. All of this just to say that the idea that marriage is a homophobic conspiracy is a conclusion not anchored in reality.

A Picture is Worth a Thousand Words

After usurping the rights of the voters in California and undermining the sacred institution of marriage by judicial fiat, four of the justices on the California Supreme Court posed for the cameras.