CA Judge denies stay of his own ruling that Prop 8 is unconstitutional

From the excellent Catholic Key blog, blog of the newspaper of the Diocese of Kansas City-St. Joseph.

Prop 8 Judge’s Denial of Stay Order is Too Cute by Half

Federal District Judge Vaughn Walker today denied a motion to stay his ruling declaring Proposition 8 unconstitutional. His written justification for denying the motion provides ample evidence that Walker should have recused himself from the Prop 8 trial. In responding to the reasons Prop 8 proponents offered for a stay pending appeal, Walker shows himself to be merely willful and more than a little cutesy.

In addressing the argument that a stay is warranted given the proponents likelihood of success on appeal, Walker, astonishingly argues that the proponents likely don’t even have standing to appeal. Walker argues, “California does not grant proponents the authority or the responsibility to enforce Proposition 8.”

And here the cute begins. He argues that only the state has that authority:

In Lockyer v City & County of San Francisco, the California Supreme Court explained that the regulation of marriage in California is committed to state officials, so that the mayor of San Francisco had no authority to “take any action with regard to the process of issuing marriage licenses or registering marriage certificates.”

The right of citizens to defend a democratically enacted law in court is here rendered akin to Mayor Newsom’s unilateral and illegal decision to start issuing same-sex marriage permits, ie., both are illegitimate. Since only the state can regulate marriage, Walker argues, the only people with standing to challenge his ruling would be the governor or attorney general. Since neither of them are likely to do so, there is no likelihood of an appeal even progressing, Walker argues. So no stay.

This is really extraordinary – the implication being that if the people of a state pass a law that the governor doesn’t like, and a trial court (with an obviously biased judge) throws out the law, then the people have no right to appeal.

If that is not bad enough, Walker’s final argument should cause alarm to every American regardless of their position on Prop 8. Walker argues there is no “public interest” in a stay, despite the fact that the public very clearly expressed their interest at the ballot box. Here Walker explains the proponents’ position:

Proponents also point to the public interest as reflected in the votes of “the people of California” who do not want same-sex couples to marry, explaining that “[t]here is no basis for this Court to second-guess the people of California’s considered judgment of the public interest.”

His tyrannical response immediately follows:

The evidence at trial showed, however, that Proposition 8 harms the State of California.

So the people vote democratically that marriage is to be between one man and one woman. A partnered, gay judge decides that would be bad for the State of California. Therefore, the people of the State of California no longer have any business pursuing what they believe is in their interest. The judge has decided what their interest is.

Walker then backs this up citing the aforementioned support of Governor Schwarzenegger and Attorney General Brown for same-sex marriage, as if this also defines the interest of the people of California, notwithstanding their clear vote to the contrary.

Walker’s full ruling is here. I’ll be following what actual legal minds have to say about it over the next few days. Certainly the 9th Circuit will review it before it goes into effect August 18. But my first impression is that Walker’s stay ruling is even more pernicious than his vain original ruling.

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  1. SimonDodd says:

    Totally predictable—and sheer spotlight-grabbing theatrics on Walker’s part that he waited this long. We know the standard for a stay pending appeal: the balance of irreparable harms must favor the movants, who must have a reasonable likelihood of success on the merits, and the public interest should favor granting the injunction. See, e.g., Warm Springs Dam Task Force v. Gribble, 565 F.2d 549 (9th Cir. 1977). And we already knew Walker’s views on those points from his earlier opinion. He doesn’t think there is a balance of harms (he’s contemptuous of the very notion that there is a valid harm to the defendants), he doesn’t think the defendants have a legal leg to stand on (which is ironic given that he himself just cut a new Constitutional right from whole cloth), and his opinion on where the public interest lies is unhidden. So it would have been astounding for him to grant the stay.

    A more humble and wise approach would have been to acknowledge that stays pending appeal are designed to maintain the status quo and agree to it. Instead, he’s trying to insulate his decision by creating vested rights (cf. Strauss v. Horton, 46 Cal. 4th 364 (2008)).

  2. MikeJ9919 says:


    Walker has been trying to wrap his opinion in layer after layer of insulation from the beginning, hoping that such maneuvers will prevent examination of the underlying legal questions. Such was undoubtedly the motivation behind all of the legal conclusions in his opinion that he dressed up as “conclusions of fact,” hoping to prevent de novo review.

    This tactic is very smart. If the 9th Circuit had taken up the case and affirmed, all states within its jurisdiction would have had their laws against gay marriage struck down. Then the Supreme Court would undoubtedly have stepped in (though how they would have decided the case is another matter.) This way, the 9th Circuit can take a pass, and California becomes another foothold, but probably not a sufficient enough rift in the fabric of federal law that the Supreme Court has to address it. We’ll see if the gambit works.

  3. Geremia says:

    What is worse, this case’s being appealed all the way up to the SCOTUS (with Sotomayor, Kagan, et al.) or its just staying a California issue? Civil war, anyone?

    Our salvation is in the Lord, not the State! Amen!

  4. raitchi2 says:

    The state just needs to get out of the marriage business altogether. Perhaps just offering civil unions and nothing called marriage for all would fix these issues.

  5. boko fittleworth says:

    Ed Whelan at National Review Online’s Bench Memos blog has been great on this.

  6. PostCatholic says:

    Read that full ruling; it’s illuminating. I have done so. The defendant-intervenors (there was no defense from the actual Defendant, the state of California) made a pitifully weak defense one has to wonder how they seriously had hoped to prevail. Surely the forces against same-sex marriage could have made a defense as rigorous as that of the plaintiffs’? Why didn’t they?

  7. Rob Cartusciello says:

    The greater failing is that the California Attorney General is not seeking to defend the rights of the voters who approved Prop 8,

  8. Kerry says:

    from Choruses from the Rock:
    “Why should men love the Church? Why should they love her laws?
    She tells them of Life and Death, and of all that they would forget.
    She is tender where they would be hard, and hard where they like to be soft.
    She tells them of Evil and Sin, and other unpleasant facts.
    They constantly try to escape
    From the darkness outside and within
    By dreaming of systems so perfect that no one will need to be good.”

    Doesn’t that just describe the secular absolutists, “dreaming of systems so perfect…”? “IHS”

  9. SimonDodd says:

    raitchi2, the problem is that you’re assuming that this is the final stage of the war rather than merely its most recent front. After they get a Constitutional right to marriage, they will demand that private entities (yes, like the Church) be legally prohibited from “discriminating”: if you offer marriage, you’ll have to offer it to all comers. You already see this foreshadowed in ENDA and the D.C. social services situation.

    PostCatholic, I’m not sure that California wanted to prevail. The Governator has recently gone on record, has he not, as favoring same-sex marriage? In a bygone era, that might have doomed the case. Back in the sixties, standing was conceptualized—wrongly—as questioning only whether the parties were sufficiently averse that the issues would be sharply presented (Baker v. Carr, for instance). Modern standing doctrine focuses like a laser on the plaintiff, and I’m blanking on whether there’s any modern doctrine that shuts out sham ligitation where the defendant is the problem.

  10. Jerry says:

    @PostCatholic – “The defendant-intervenors made a pitifully weak defense one has to wonder how they seriously had hoped to prevail. Surely the forces against same-sex marriage could have made a defense as rigorous as that of the plaintiffs’? Why didn’t they?”

    A very good question. Have they commented yet?

  11. EXCHIEF says:

    They haven’t, and I doubt they will. The pro marriage between man and woman folks are speaking out but those who “officially” defended Prop 8 (weakly) have everything to gain by keeping their mouths shut. They are politically correct political animals with no real moral values other than their own success in the political arena.

  12. Fr Matthew says:

    This whole mess is tremendously sad, because it particularly damages the very people it purports to protect and defend. Homosexual activity is spiritually, psychologically and physically damaging to the individuals who practice it. The truly compassionate thing to do us to recognize the truth and help people to live it, not to disguise and distort the truth to affirm whatever anyone wants to do and sedate their consciences. I’m going to preach on this topic at Mass tomorrow morning, given that the Gospel reading is about marriage. It will be interesting to see what kind of feedback I get from the congregation. I’ve already posted a version of the homily on my blog and Facebook and have not been “flamed” yet (that Internet slang takes on new meaning in this context…). I wonder how long it will take.

  13. Supertradmum says:

    One can see the not-so-subtle change in the theory of law behind this ruling. Kagan stated clearly that she does not believe in Natural Law and that either the federal government or the state determine law, not based on any philosophy of n.l. but merely on the immediate needs, or an ideology-a word she did not use.

    Same here in the California judgment: what is legal may be determined by the State, not the people, not Natural Law. If the judges of a state decide contrary to the people, they apparently have the right to do so, as purveyors of the law. We just sent Kagan to the Supreme Court, which will get this case for sure.

    The persecution of the Church will begin here, with homosexuals demanding Church marriages, as well as with womenpriests, who will make their “plight” a civil rights issue, just as the homosexuals are succeeding in doing.

  14. TJerome says:

    Judicial fascism at work. By the way, the “mainstream” media hid the fact that the judge is gay. So much for providing the public with their “right to know.”

  15. Joshua08 says:

    This not only shows bias, but utter incompetence. His argument is a form of begging the question. Part of what the proponents of prop 8 hold is that gay marriage causes harm. His decision, which they wish to appeal, is that it doesn’t. But their standing in part depends on whether the decision causes harm. Which is just to say if Judge Walker was wrong in his decision in the first place, then there is standing because there is harm. If Judge Walker were right (he isn’t) then at least there is presumed standing by the proponents.

  16. Joshua08 says:

    Let me add. First, if they have no standing to appeal, then they had no standing to defend. In which case Walker’s decision was illegal, since he should have not recognized the standing of the proponents in the first place. It could be argued that by default the case should have been dismissed (cf. SCOTUS Moore v. Charlotte-Mecklenburg Board of Education), maybe not.

    So in allowing them to defend, he recognized standing, but then turns around and denies that. The case he cites is not relevant. In that case Arizona’s governor defended the law in district court and chose not to appeal. Private parties who were proponents of the law wanted to appeal. The court ruled that they did not have standing because Arizona’s law did not envision them acting in the place of public officials.

    In this case, California law does. When a proposition is challenged, the proponents of it may defend it if the state officials choose not to. Hence they can also appeal. If Jerry Brown had defended it in district court and chose not to appeal, then perhaps the standing would be different (it is still not the same as the Arizona case, because California law is different).

    Walker is abusing the law. Indeed, the very case he cites, Arizonans for Official English v. Arizona , recognizes as a matter of principle that the standing to defend a proposition in district court is coextensive with the standing to appeal. Only in that case, the proponents had no standing in district court. Again, Walker recognized standing in district court. By citing this case the only logical conclusion is that there is standing to appeal

  17. Joshua08 says:

    “One can see the not-so-subtle change in the theory of law behind this ruling. Kagan stated clearly that she does not believe in Natural Law and that either the federal government or the state determine law, not based on any philosophy of n.l. but merely on the immediate needs, or an ideology-a word she did not use.”- Supertradmum

    Unfortunately, she is not the only one. Scalia for instance is a legal positivist and explicitly denies, not the existence of natural law, but that it has any role whatsoever in legal interpretation. They have all tasted the kool-aid.

  18. Supertradmum says:


    Very scary for the future of a free America, and a Constitution based on Natural Law. Of course, we have the philosophical and legal utilitarians to blame for this–the Benthamites, some types of which are still teaching and in our seminaries.

  19. The Cobbler says:

    If it’s really that cutesy, then let’s pray he keeps talking and giving away his game.

    Granted, it’s possible that too few people will have enough sense to put two and two together as demonstrated by this critique; but if so, the graver problem in my opinion is that lack of sense on the part of so many people; this judge would simply be a good example (or maybe that example would be even a mere symptom) of a much larger problem.

  20. The Cobbler says:

    I hope what EXCHIEF says isn’t true, but it would not surprise me and would explain what PostCatholic points out, which I have already heard from reliable Catholics myself. (I haven’t been following the case directly, so I can’t say it’s my own opinion; I’ve picked up some interesting chatter, though.)

  21. Peggy R says:

    This judge has really made no effort to pretend to be even-handed or to have much regard for due process and legal precedent. The gov and Jerry Brown refused to defend the expressed will of the people, so the group that put up the ballot initiative defended it. Now the judge claims they have no standing to appeal. So, if the State refuses to defend the will of the people,no one may do so? What about some voters–which would presumably be encompassed in the Prop 8 movement.

    I must say, I am not terribly impressed with the case that pro-Prop 8 folks put on. They relied on legal precedent about the purpose of marriage, which is fine, but not a live witness on some points. The judge reamed them–though unfairly–on that. The Prop 8 lawyer came out and said that he didn’t know what would happen if gay “marriage” came to pass. He then elaborated, intending to get at the danger of uncertainty. But I think that was dumb lawyering–from an expert witness’ point of view. I don’ think the lawyer needed to concede such a point so directly. There is much academic theorizing about the social consequences of gay “marriage.” The Prop 8 lawyers, like so many conservatives or innocent citizens were out-lawyered, presuming that the judge would play fair. They should have thrown the kitchen sink at this case.

    This reminds me of the Terri Schiavo case, which was clearly stacked against Terri’s life. Her parents were out-gunned and the judge was biased in a particular direction. The trial judge made findings of fact that did not comport with reality, certainly not as far as her family was concerned. Appeals are not normally about findings of fact, but about legal procedures. Walker pulled a similar trick here with all his dubious “findings” about gay “marriage” which were not really the point. This case was to be about the right of the citizens to vote on what sort of unions will be recognized by the State.

  22. Chris Garton-Zavesky says:

    I’m not a legal scholar, but it seems to me that the team which “defended” Prop 8 – if that’s what we call what they did – fell back to the weakest possible, but only remaining bridge. What I mean is that once our society has accepted contraception, no-fault divorce, abortion, and similar things, “the people spoke” is what the defense team thought of as its best argument.

    I’m puzzled by the Governor and the Atty General. Don’t they have an obligation, under the constitution, to defend stare decisis and statutory law? Couldn’t someone press for their removal on these grounds?

    In a society in which all those in both power and authority will not listen to reason, is there something to be gained by advancing stronger arguments? Yes, but not for the purpose of preserving this society from its own perdition. 50 years from now, there will be a record to answer the question “Didn’t they know what was going on around them?”

  23. Latter-day Guy says:

    Now, don’t everyone freak out, but I honestly think that overturning Prop 8, on the basis of (federal) constitutionality, might be something of a best-case scenario. Prop 22 (passed in 2000) resulted in a ban on SSM; it was an ordinary statute, and therefore subject to possible judicial review. That review came in 2008 as “In re Marriage Cases,” which overturned Prop 22 and allowed SSM as an implied (or ‘penumbral’) right, protected in the CA constitution. In November 2008 with the passage of Prop 8, SSM was prohibited by the addition of explicit constitutional language.

    And here’s the rub: the eventual legalization of SSM appears to be pretty much inevitable, simply on the basis of age demographics. Younger generations are much more apt to approve of (or at least tolerate) gay marriage, than their parents or grandparents. Prop 22 passed with a comfortable 22% margin. Prop 8 only squeaked by with 4.48%. If Judge Walker’s ruling had never occurred, I would have put my money on Prop 8’s being overturned within the next decade. Barring the process of judicial review, that reversal could only come in the form of another change of constitutional language. While this could be done by simply striking the language added by Prop 8, gay marriage supporters –– if they were smart (and many of them are, no doubt) –– could probably go further, granting SSM the greater protection of explicit constitutional language. In that case, it would no longer be an implied right and would have the same protection as, say, the rights to freedom of expression and religion.

    When an express right and an implied right bump heads, the express right stands a much greater chance of coming out on top. However, when two express rights are in conflict, the situation is rather more dicey. Thus proponents of Prop 8 may have set and baited the very trap that they could not avoid stepping into in future. Since one of the most oft-repeated arguments against SSM was that it would negatively impact religious freedom, it seems like a bad decision to put gay marriage on an equal footing, thereby increasing the likelihood of the very result SSM opponents fear most.

    However, with the Walker ruling, the opposing forces have an opportunity for a rematch, this time on a federal level. As MikeJ9199 pointed out, If the 9th Circuit upholds his ruling, it is very likely that the U.S.S.C. will grant a review. (Otherwise, the 9th Circuit states –– Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington –– would be required to allow SSM, while no other states would. That’s a situation the U.S.S.C. would almost certainly not allow for very long.) On the other hand, if the 9th Circuit overturns the Walker ruling, there’s a good chance the S.C. would not grant a review.

    In any case, if gay marriage opponents cannot put together a much stronger case than the limp-fish waste-of-time-and-money we’ve seen so far, they might be better off conceding the territory already lost, rather than bringing a plastic spork to a gun-fight.

    After they get a Constitutional right to marriage, they will demand that private entities (yes, like the Church) be legally prohibited from “discriminating”: if you offer marriage, you’ll have to offer it to all comers. You already see this foreshadowed in ENDA and the D.C. social services situation.

    Highly unlikely in the light of important precedents such as Dale v. Boy Scouts of America, and (if you don’t mind my injecting some Mormonism into the conversation) Amos v. Presiding Bishopric. Besides which, ENDA already contains clear exceptions for religious and non-profit membership-only organizations (excluding labor unions).

  24. Robert of Rome says:

    To Everyone: Thanks for participating in one of the best strings of comments I have seen in a long time on Fr. Z’s blog. Thank you all for the high-quality contributions, especially in regard to the bearing of U.S. constitutional law on Prop 8. I have learned alot from you. I have no legal training, nevertheless, along with PostCatholic, PeggyR, Chris Garton-Zavesky and Latter-day Guy, I was underimpressed by the legal arguments advanced by the defendant-intervenors in this case. I have no desire to defend Judge Vaughn Walker’s decision, nevertheless, I bothered to read the trial transcripts and I must say that, in my view, the legal team defending Prop 8 appeared ill-prepared for the task and was easily outmaneuvered by the opponents of Prop 8. I do not know who will defend Prop 8 before the Ninth Circuit Court of Appeals or before the U.S. Supreme Court, but, God willing, they will be better prepared.

  25. Joshua08 says:

    Latter-day Guy, the real problem with religious freedom is not the Church being forced to officiate gay “weddings”. It is with the use of Church owned property (as well as property owned by say the KoC) being forced to rent space for such things.

    Take my parish. They host a series of lectures. These lectures are done by a private party outside the parish (though still Catholic). Now if they use their hall and rent it to an outside party, now the legal challenge is different. They will be forced to also rent it to a gay “marriage” reception- unless they decide not to rent it to outside parties, and use it only for say receptions after weddings that happen there and like things. At least that is my understanding from what I have been told.

  26. Latter-day Guy says:

    You know, Joshua08, that thought never even crossed my mind. I have never seen one of our Mormon buildings rented out (perhaps it’s against Church policy?); if renting does happen, and there were going to be a legal wrinkle because of it, I’d bet LDS leadership would put the kibosh on it immediately… at least in the US.

    But yeah, that is definitely something to consider. How do you imagine Catholic leadership would respond? Would it differ by diocese?

  27. Dear Robert of Rome et al.,

    I, too, was unimpressed, to say the least, with proponents’ (i.e. Prop 8-defenders) legal team.

    Appalled would be a better word.

    The real issue is one of limited government, though not in the sense of the constitutionally-established limits of a government or even a body politic in our federal system to make social policy.

    Really at issue is the basic question whether government is as such naturally limited in the scope of its power.

    Marriage is a natural social institution: it is both historically and ontologically prior to the state; when the state arrogates to itself the power to alter the basic structure of marriage, it is caliming to have power to alter nature; power to alter nature is power over nature – even power to abolish; the state that claims to have power over nature is therefore, in prionciple, total – i.e., not by nature limited in the scope of its power.

    Indeed, in the American register:

    [E]very power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society (Alexander Hamilton’s report on the constitutionality of a national bank).

    On the other hand, it is most emphatically not the task of government to represent our values – as many well-intentioned defenders of traditional marriage have from time to time asserted – but to secure our rights and further our real interests.

    There cannot be a “right” to gay marriage, unless there is a right to marry the person of one’s choosing, without respect to that person’s sex – but this only possible if marriage is not essentially the union of one man and one woman.

    This strikes me as the proper line of argument.


  28. Kerry says:

    On the radio yesterday Robbie George asks/asked the homosexual marriage(sic.) believers,if gender is irrelevant to marriage, by what principles are polyandry and poly-amorous marriages to be prohibited? One does not expect an answer beyond shrieks. Chesterton is curiously comforting:
    ” Out of the mouth of the Mother of God
    Like a little word come I;
    For I go gathering Christian men
    From sunken paving and ford and fen,
    To die in a battle, God knows when,
    By God, but I know why.

    “And this is the word of Mary,
    The word of the world’s desire
    ‘No more of comfort shall ye get,
    Save that the sky grows darker yet
    And the sea rises higher.’ ”

  29. Supertradmum says:

    Again, the above discussions ignore the fact the American legal interpretations have turned a huge corner, which will not be changed. That is, in many law schools, the Natural Law philosophy is not only ignored, but taught against, with the emphasis on legal positivism. Once a generation of lawyers departs from the Natural Law premise, there are few who can argue the point from anything but utilitarian exigencies, and from the viewpoint that government has the right, indeed, the primary right of determining law from its point of view. As much as I love Alexander Hamilton, I am afraid his ideas are not longer revered.

    Once a people decide to form laws outside of the Ten Commandments and Natural Law, anything is possible.

    In addition, anyone who thinks that the Catholic Church will get a pass on not honoring
    “requests” for marriages in Catholic churches by homosexual couples is not seeing the trend already being set against Catholic charities, adoption agencies, and schools. The Church is and will be persecuted big time not only through the courts, but through legislation aimed a so-called civil rights for homosexuals. Small example, in the State of California, no one can discriminate against a cross dresser. Many Christian bookstores closed in our area where we lived when this decision came through the courts, as the decision dealt with a Christian store refusing to hire a cross dresser. The decision went to court and the cross dressing population won the case. No store, business, etc. can not hire a “qualified” transvestite. I do not think this went to the Supreme Court of the land.

  30. Kerry says:

    If gender is immaterial, suppose Judge Walker wakes up one morning to find his partner transformed not into Kafka’s beetle, but into a pleasant brunette, will he think differently? Heh.

  31. Latter-day Guy says:

    Sorry, but arguing against homosexual behavior on the basis of natural law simply does not hold water. Homosexual behavior is observable in nature; in species that mate for life, there are examples of life-long homosexual pairings. Of course, that doesn’t make homosexual behavior morally acceptable. But to argue against homosexual behavior from the position of natural law, you would be forced to define “nature” in such a way as to render the term “natural law” essentially meaningless.

  32. Supertradmum says:

    Latter-day Guy,

    You have just proved my point.

  33. Not really, or at all, Latter-day Guy: truth be told, not even Hamilton was using the term in the full-blown sense of natural law.

    I know I need to draw this out a lot more.

    That is why I said, “this strikes me as the right line of argument.”

    Also, and most importantly, I am not arguing against homosexual behavior.

    I am arguing from an empirical fact, to wit: the institution of marriage is older than the state.

    Not only: the states of the United States have always recognized the priority of marriage. Apolid refugees after numerous wars have simply sword affidavits (when it was required, which often it was not) to the effect that they were married. Nor has it ever been customary for states to require Indian marriages to be re-contracted when tribes, nations and/or individuals came under their jurisdiction.


  34. M Heller says:

    Our culture is changing and so are our laws. If we are to be successful in convincing the courts and legislators, we have to first convince the people why marriage should be between one man and one woman. It sounds ridiculous that it should even require explaining, but, unfortunately the majority of our country thinks that it is fine for same sex couples to be married. The defense may have been weak in this case, but the defense in the public square has also been weak. If we can’t clearly and convincingly explain the purpose of marriage, we are just going to be portrayed as being mean spirited and interfering with other people’s business. One of the problems is that our culture has become so selfish and self-centered, that it doesn’t occur to people that one of the chief aims of marriage is to protect and nurture children. In our world, it’s all about ME.

  35. TJerome says:

    I guess the Right to Gay Marriage is in the same “penumbra” of the US Constitution as the “Right to an Abortion.” George Washington etal, were really clever fellows. In all seriousness, in a Republic like we have, the individual States should decide whether to permit this or not. Given that most folks are opposed to gay marriage, it could not come to pass except for highhanded jurists acting like monarchs. Which by the way, was another reason we fought the American revolution, the tyranny of British judges over the colonies.

  36. Andrew says:


    You write: “Sorry, but arguing against homosexual behavior on the basis of natural law simply does not hold water. Homosexual behavior is observable in nature … etc.”

    You don’t seem to understand natural law.

    Natural law is based on rational discernment, not on empirical data of animal behavior. Otherwise, natural law would imply that it is good to kill others for food because lions do that.

  37. Peggy R says:

    I think one has to argue why the state and society benefit from heterosexual marriages in ways that they do not from gay or other forms of unions–in procreation and child rearing, in propogation of future generations, in social stability, in reducing crime or other social pathologies, in “civilizing” men (neither 2 gay men nor 2 gay women civilize men). Gay unions offer none of these social benefits. I think one had to focus on why the state should recognize monogamous heterosexual unions above all others, because that’s all the Prop 8 was stating.

    Also legally, yes, the right of states to regulate marriage must be defended as well.

  38. robtbrown says:

    Kagan stated clearly that she does not believe in Natural Law and that either the federal government or the state determine law, not based on any philosophy of n.l. but merely on the immediate needs, or an ideology-a word she did not use.
    Comment by Supertradmum —

    To her natural law is irrelevant because she can always refer to the one size fits all Equal Protection argument.

  39. robtbrown says:

    After they get a Constitutional right to marriage, they will demand that private entities (yes, like the Church) be legally prohibited from “discriminating”: if you offer marriage, you’ll have to offer it to all comers. You already see this foreshadowed in ENDA and the D.C. social services situation.

    Highly unlikely in the light of important precedents such as Dale v. Boy Scouts of America, and (if you don’t mind my injecting some Mormonism into the conversation) Amos v. Presiding Bishopric. Besides which, ENDA already contains clear exceptions for religious and non-profit membership-only organizations (excluding labor unions).
    Comment by Latter-day Guy

    I agree. Eventually, we might follow the norm in many Euro countries: The state would only recognize civil marriages–anyone married in the Church would also have to have a civil ceremony.

    There are also serious consequences in military life, where quarters are often provided for married couples. A substantial number of military families are religious, and they would be forced to live in close proximity to a homosexual couple.

    The private property point is true. The obvious answer is to stop renting Catholic facilities to outside groups.

  40. robtbrown says:

    Should be: Opposition to her natural law is irrelevant because she can always refer to the one size fits all Equal Protection argument.

  41. SimonDodd has raised the pertinent issue: legalizing gay marriage is not about rights for homosexuals but rather it is about setting up a legal framework that allows the government to pursue discrimination charges against religious bodies that do not recognize same sex marriage within their own community.

    Initially, I thought, naively, that it made sense to allow the same-sex marriage law to pass. Why fight it? Simply distinguish between civil law and the sacrament. We have the sacrament, they have the civil law, which does not concern us.

    However, upon further reflection, it became clear that this lawsuit was not about gay rights, but rather it was an attack on the right to practice religion. The judge’s ruling further makes it clear this is an attack on religion.

    Thus, legally, the work that must be done is to raise the issue of freedom of religion and build the firewall that prevents discrimination claims being brought against religious bodies. It may be important to start fighting the battle that is on the horizon rather than the one in the rear-view mirror.

  42. robtbrown says:

    SimonDodd has raised the pertinent issue: legalizing gay marriage is not about rights for homosexuals but rather it is about setting up a legal framework that allows the government to pursue discrimination charges against religious bodies that do not recognize same sex marriage within their own community.
    Comment by Taming Author Greg

    I think there are liberal fascists who would love to advance to that situation, destroying the Church in the meantime. But I don’t think it will happen.

  43. JosephMary says:

    Spirit & Life®
    “The words I spoke to you are spirit and life.” (Jn 6:63)
    Human Life International e-Column
    Volume 05, Number 29 | Friday, August 13, 2010

    Gay Marriage and the End of Christian Civilization

    Back in the 90s when Fr. Paul Marx, founder of HLI, was asked his opinion about the efforts to legalize “same-sex unions” he commented in his usual forthright fashion, “When they do that,” he said, “it’s the end.” He meant “the end” of the Christian civilization whose values used to form the basis of American common life. Fr. Marx, in a prophetic sense, saw rightly that a society cannot survive the perverse manipulation of the very structure of reality that God Himself has revealed to us, one very fundamental element of which is the institution of marriage. When we allow that to be changed-“It’s the end.”

    read the rest at:

  44. Yep, JosephMary…”it’s the end”. May Fr. Paul Marx, OSB, a great man, priest, religious and witness for human life and the Catholic Faith, rest in peace. God love him.
    We’re heading “towards Gomorrah”, if not at the precipice.
    Pray the Rosary daily; go to Mass, Holy Communion and Confession. Guide your families; witness to life, love and the Faith.
    The example of the English martyrs, in the face of all kinds of rebellion against Rome (ultimately the sanctity of marriage (!)), must be our guide. May they pray for us in this most dark of times!

  45. Supertradmum says:


    I hate to be pessimistic, but I think that we shall see the destruction of religious freedom in the United States in my and your lifetimes. These issues will marginalize the Church and legislation will force an underground True Church which will exist with some type of compromising church recognized by the State. This has been coming for a long time and we should be ready to be a persecuted, yet peaceful remnant.

  46. Chris Garton-Zavesky says:

    As I see it, there are a whole host of problems with “the people decided” argument.

    1) Marriage isn’t up for definition or redefinition by this people, here and now, or by any individual people at some other point in history. As soon as the argument becomes about the “people” defining something, intimidation (or merely government education) can change how the people decide.

    2) What if the “people” had decided the other way? Where would our argument be, then. Considering how close this came to becoming reality, one should worry.

    3) Since marriage is anterior to the state, it must have a definition which is anterior to the state. The state (by judicial fiat or any other means, such as a referendum in California) doesn’t have the authority to change the nature of marriage.

    4) No one seems to be asking the question: “for what purpose does marriage exist?”

    I’ll stop there.

  47. It won’t be long before the families of Lot in the area will have to depart for safety.

  48. DT says:


    No state would pull out of the marriage business, as you kindly put it. The original intrusion of the state upon marriage is to make it easier for a couple to obtain a bill of divorce.

  49. Supertradmum says:

    Bishop Olmsted has a great comment on this–thank God for some clear and courageous bishops.

  50. Latter-day Guy says:

    RE: Natural Law,

    Yup. I totally missed it. Supertradmum, Chris, and Andrew: thanks for clarifying.

  51. bookworm says:

    Check out this link:

    This is a diocesan newspaper column by Bp. Thomas Paprocki of Springfield, Ill. In it he proposes for sainthood a woman who used to work at a parish he pastored in Chicago. The lady in question, Mary Stachowicz, was murdered in 2002 by a co-worker at a different place of employment, who was gay and took offense at her suggestion that he repent of his lifestyle. He considers her a martyr killed in defense of chastity, similar to St. Maria Goretti.

    It’s an intriguing suggestion, but it seems to me that Bp. Paprocki is no longer in a position to really promote this cause — I assume the Archdiocese of Chicago would have to do that since that’s where she lived and died. I don’t foresee them doing that any time soon, since needless to say, it would be highly controversial.

    However there’s nothing preventing us from privately seeking her intercession to help us stand strong when the Church and its teachings are attacked.

  52. Peggy R says:

    Bookworm: Great link about Mary Stachowicz. God bless her soul.

    We Catholics will not be alone. Christians will not be alone. Granted their number might be small, but orthodox Jews will be with us. After all the moral, faith-filled folks, we will still have a good many people who simply know in their gut something’s wrong with gay “marriage” as well as all the other “ruling class” shenanigans. I think we may see a revolt. The people are not going to go quietly anymore. How it will be manifested, I do not know. Be ready.

  53. Dave N. says:

    Chris Altieri: Dear Robert of Rome et al.,

    I, too, was unimpressed, to say the least, with proponents’ (i.e. Prop 8-defenders) legal team.
    Appalled would be a better word.

    Anyone blaming the judge for this decision (including the Catholic Key Blog–the author of which clearly hasn’t even been bothering to follow this case in the news) should seriously review what actually happened in the case itself–Chris Altieri could not be more correct.

    The defense side (if you could call it that–the intervenor–Alliance Defense Fund/a.k.a James Dobson et al.) is utterly incompetent. They paid hundreds of thousands of dollars for expert witnesses (some of whom incidentally ALSO serve on the board of the Alliance Defense Fund–how convieeeeenient…) that actually ended up changing their testimonies on the stand or were so ill prepared that the plaintiffs (i.e., the pro gay marriage side) actually used the defense’s expert depositions against them in court. This was not even a contest. I often wonder whether the California Catholic Bishops are still pouring money down this incestuous rat hole–one that in the end will simply serve to line the pockets of James Dobson.

    Now on the other side (i.e., anti-Prop 8/pro gay marriage) we have BOTH the attorney for George W. Bush in Bush v. Gore AND the attorney for Al Gore in Bush v. Gore. These guys are not slouches. They will win–unless something changes. The only hope here is that someone else finds standing and ousts the Alliance Defense Fund as the intervenor–remember that the State of California is the defendant, not the Alliance Defense Fund. I have no idea whether this is even possible.

    Follow the money.

  54. joan ellen says:

    Excellent comments above. Does all of this boil down to a violation of hierarchy…God being replaced by man.

    1. Does not Natural Law (order) depend upon Supernatural Law (order par excellence)? If n.l. is denied, is not S.L. also denied? Is operating under Civil Law only(Kagan)similar to reason without faith? How can c.l. be reasonable without faith?

    2. In a natural marriage – between a man and a woman – is not procreation possible – with a man, woman, and child family…the order in a natural hierarchy? A child has a need and a right to a mother and a father…in the natural sense…and in the Supernatural sense. In a gay lifestyle/’marriage’ procreation is not possible…what/where is the order, the natural hierarchy? A child does not have a need and a right to a mother and a father…(Walker) since there are no children…in the natural sense. And does not this lifestyle/’marriage’ play right into the one world population goal…(whether 80% reduction -currently about 5 billion less, or, according to some, reduced to .5 billion)?

    3. Do women ‘priests’, a violation of hierarchy, gain support for their movement from females in the Sanctuary, speaking in Church, etc.?

    Could we be violating not only the hierarchies of God and His Church, and of man, but also of thinking? (Thinking is remembering and deciding, and includes higher thinking levels, such as synthesis, wisdom and sublime thoughts.) Isn’t thinking in low levels…emotion, passion… the cause of violations in hierarchies?). Is this violation of hierarchies in thinking the diabolical disorientation of which Sister Lucia of Fatima spoke?

    Are we near the bottom of the slope when it comes to gay ‘marriage’ and women priests. Are these movements not going lickety split to the bottom? Grace from The Mass, Sacraments, Prayer…especially the Rosary….can help us obey God and right the violations.

  55. bookworm says:

    Re what Dave N said: how does Dr. Dobson benefit from putting on a lame defense in the Prop 8 case?

    Are these “expert” witnesses just naturally incompetent, or in above their heads? Or could they be intentionally not trying too hard and hoping they will lose, in order to force the issue to the Supreme Court?

  56. Dave N. says:


    I think James Dobson and related organizations benefit in two ways. The first is that hiring some of their own as experts keeps a significant amount of funding for the court case “all in the family.”

    But the second and more significant benefit is that a loss in this Federal case–and not unrelated demonization of the judge, as in the subject blog above–will help whip up the contribution base like never before. As an example of how this works, during the Prop 8 campaign the Family Research Council (the political arm of Focus on the Family, a.k.a James Dobson) established groups like “Catholic Support Marriage” which famously drew significant financial support by the Knights of Columbus and the California Catholic Conference (bishops of California). But groups such as these are controlled by various arms of Focus on the Family and are not in any way “Catholic.” I don’t know about you, but the idea that part of my Mass collection ends up at Focus on the Family is a little distasteful. Some of the co-founders of the Alliance Defense Fund (the legal arm of Focus on the Family and the organization defending Prop 8) have been shown to be pretty tolerant of the typical anti-Catholic rhetoric you find among some fundamentalist Protestant groups.

    So why can’t Catholics establish their OWN opposition to Prop 8? The California Catholic Conference really needs to answer this question.

    As for their motives? Did James Dobson et al. intentionally “throw” the case? Well, when your OWN EXPERT states on the stand that the “country would be more American on the day we permit same-sex marriage than we were on the day before” even an impartial observer does have to wonder. But the Alliance Defense Fund sees itself as becoming richer and more powerful no matter the outcome. They want to be in control, and for some reason they are.

    Are they in over their heads? Yes, I’d say so. The other side has assembled a legal dream team–they are CLEARLY ready for the Supreme Court. Hiring Ted Olsen, former Solicitor General under George W. Bush and Bush’s lawyer in Bush v. Gore, says “see, this isn’t about politics or liberal/conservative, it’s about equality.”

    So using a Justice John Roberts analogy, demonizing Judge Walker (a Bush appointee and someone who was so conservative that Ronald Reagan couldn’t even get his appointment through) is like “blaming the home-plate umpire for calling an out after the batter swings at and misses three straight pitches.”

  57. Dave N. says:

    Here’s what Liberty Counsel (the Jerry Falwell counterpart to the Alliance Defense Fund) had to say about ADF and their defense:

    “Although Liberty Counsel has defended the marriage laws in California since the battle began in 2004, the Alliance Defense Fund, representing the Prop 8 initiative, opposed Liberty Counsel’s attempt to intervene on behalf of Campaign for California Families. The California Attorney General did not oppose Liberty Counsel’s intervention, but ADF did. Liberty Counsel sought to provide additional defense to Prop 8 because of concern that the case was not being adequately defended.”

    Of course the ADF rebuffed their offers of help. This is all about money and control. More at:

  58. Chris Garton-Zavesky says:

    Somewhere along the way this comment section took a turn for the weird. How does losing a case help Dr. Dobson and company? How does promotion of sodomite marriage help, whether it is merely to “fill the coffers” or to help society? While one can argue that the case was incompetently, inarticulately presented, this doesn’t get at some explanation of why.

  59. I must say, I am impressed with the level of the comments.

  60. Hieronymus Illinensis says:

    Joshua08 (13 August 2010 @ 2:11 am), before it’s about churches being obligated to rent halls for gay weddings, it will be about Catholic musicians being obligated to play for gay weddings, Catholic caterers, florists, and photographers being obligated to serve them, etc. These professions will become closed to practicing Catholics, as is the case now with pharmacists, who must dispense the morning-after pill, and as the pro-aborts want to make true of physicians.

  61. Hieronymus Illinensis says:

    Peggy R (13 August 2010 @ 10:10 pm), I hope the observant Jews will stand with us, and not suffer from King Josiah’s disease.

    Josiah undertook a much-needed, long-overdue moral reform of the kingdom of Judah, but that was cut short when he went out to fight Pharaoh Necho and was killed. Why did he go out to fight Necho? Necho was going to reinforce the last remnants of the Assyrian state, which had been the chief enemy of Israel and Judah for the last two and a half centuries. But by the time of Josiah’s last battle, Assyria was on the ropes, its capital already destroyed by the Medes and Babylonians — the Babylonians who, within twenty years, would destroy Jerusalem and carry its people off into exile.

    By fighting last year’s war against last year’s enemy, Josiah cut short his moral reform, which might have restored Judah to God’s favor. What has held Assyria’s place in relation to the Jews of our time is, of course, Christendom.

  62. Peggy R says:

    Hieronymous: I spoke specifically of “Orthodox” Jews. They are already participating in pro-life events, opposed Kagan openly and strongly, among other things. I don’t have much confidence in Reformed or Conservative Jews.

  63. Dear Dave N.,

    I am not sure the Alliance Fund was really so cynical and craven as some of your remarks suggest they might have been.

    I think they might have been quite sincere in their belief that “their” people were “the best” experts. I think it would have been easy for them to believe this, since both the Alliance attorneys and their expert witnesses have not spent very much time talking with folks who don’t see things exactly as they do – and next to no time thinking about the merits of the other side’s positions.

    There was a very telling moment in the trial, in which Blankenhorn admitted on cross that he was unfamiliar with a particular study introduced by plaintiffs, and even so, allowed himself to criticise the authors of the study:

    During trial, Blankenhorn was presented with a study that posed an empirical question whether permitting marriage or civil unions for same-sex couples would lead to the manifestations Blankenhorn described as indicative of deinstitutionalization. After reviewing and analyzing available evidence, the study concludes that “laws permitting same-sex marriage or civil unions have no adverse effect on marriage, divorce, and abortion rates, the percent of children born out of wedlock, or the percent of households with children under 18 headed by women.” PX2898 (Laura Langbein & Mark A Yost, Jr, Same-Sex Marriage and Negative Externalities, 90 Soc Sci Q 2 (June 2009) at 305-306). Blankenhorn had not seen the study before trial and was thus unfamiliar with its methods and conclusions. Nevertheless, Blankenhorn dismissed the study and its results, reasoning that its authors “think that [the conclusion is] so self-evident that anybody who has an opposing point of view is not a rational person.” Tr 2918:19-21.

    That is the sort of thing you say after a cocktail or two at the club with your like-minded cronies.

    Sure, neither proponents’ attorneys nor their experts were going to convince plaintiffs of the error of their ways – but that was never the point. They needed to show an impartial judge that they took their adversaries’ claims seriously – and in this they failed utterly.

    When proponents’ expert Kenneth P. Miller was cross examined, he admitted that proponents’ counsel provided him with most of the “materials considered” in his expert report. Plaintiffs filed a motion to exclude miller on the grounds he is not an expert in the pertinent field, to which they attached an exhibit listing 158 sources that appear on both Miller’s list of materials considered and the list of proponents’ withdrawn expert, Paul Nathanson, including twenty-eight websites listing the same “last visited” date). Judge Walker continues (51 @4):Miller stated that he did not know at the time of his deposition the status of antidiscrimination provisions to protect gays and lesbians at the state and local level, Tr 2506:3-2507:1, could only identify Don’t Ask, Don’t Tell and the federal Defense of Marriage Act as examples of official discrimination against gays and lesbians, Tr 2524:4-2525:2, and that he has read no or few books or articles by George Chauncey, Miriam Smith, Shane Phelan, Ellen Riggle, Barry Tadlock, William Eskridge, Mark Blasius, Urvashi Vaid, Andrew Sullivan and John D’Emilio, Tr 2518:15-2522:25.

    I get the sense that Judge Walker was willing to give proponents a fair hearing, and proponents blew it utterly, with possibly hundreds of blunders similar to the two above.

    There are many other issues to address in this – and I will be doing so over at mine sometime between today and tomorrow.

    For the moment, let me only say that, on appeal (and especially before the SCOTUS) I really hope pro-Prop-8 attorneys (whoever they are or then might be) are smart enough to give up on the choir-preaching and present a case that is designed to tickle the fancy of a certain SC Justice.


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