Chuck Cooper Strikes Back

Chuck Cooper Strikes Back
Maggie Gallagher
8-19-10

This week, two things happened in the gay marriage wars:
The 9th U.S. Circuit Court of Appeals issued a stay overruling U.S. District Judge Vaughn Walker's decision to permit gay marriages to take place immediately, before higher courts have a chance to review his unprecedented ruling.

And a new poll released by Public Policy Polling shows that Americans continue to oppose gay marriage by an almost 2-to-1 margin.

Normally, when a lower court judge finds a new constitutional right never before acknowledged by any federal court except his, he is modest and reasonable enough to stay his decision, recognizing that higher courts will have the final say. But Walker's behavior from start to finish in this case has not been normal or usual for a judge.

This marks the third time in this trial process that Walker has been slapped down by a higher court: once by the Supreme Court over the issue of televising the trial; once by the 9th Circuit over the issue of forced disclosure of private e-mails by campaign leaders; and now by the 9th Circuit again.

When you read the devastating brief that attorney Charles Cooper filed asking the 9th Circuit to overrule Walker, it's not hard to see why. It is a total smack-down of Walker's decision to ignore the immense amount of evidence brought to him -- not to dispute it, but to simply ignore it.

Walker tried to pretend, in essence, that the only form of evidence a trial judge may consider is expert witness testimony in court. He even ignored expert witness testimony when it clashed with his own views. Harvard professor Nancy Cott, a historian of marriage, favors gay marriage, but even she freely admitted in trial that gay marriage represented a momentous change in the public meaning of marriage, and that the effects of this change would be impossible to determine in advance.

Walker's ruling, on the other hand, creates a fantasy alternate reality in which it is simply a "finding of fact" that gay marriage has always been part of the "historical core" or our marriage tradition. Walker ignored the evidence presented from distinguished social scientists, as well as previous court decisions, that "responsible procreation" has always been considered a core purpose of marriage, in addition to evidence that children benefit by being raised by married mothers and fathers.

To give you an example of how extreme Walker is, he ruled that orientation is a protected class subject to strict scrutiny -- ignoring no less than 10 higher-court decisions to the contrary. He doesn't contest, distinguish or disagree with these binding precedents. He literally ignores their existence.

This is very odd behavior for a federal judge.

Meanwhile a new poll shows the American people are not buying the Big Lie that marriage is bigotry, even after it has been endorsed by Walker.

In the latest poll from Public Policy Polling conducted Aug. 6-9, Americans who were asked whether they believed gay marriage "should be legal or illegal" opposed gay marriage almost 2-to-1 -- 57 percent opposed, 33 percent in favor.

Republicans oppose gay marriage 81 percent to 12 percent, while Democrats only narrowly favor it 47 percent to 40 percent. The all-important independents also oppose gay marriage by a 48 percent to 41 percent margin. Whites are against it 58 percent to 34 percent, Hispanics 57 percent to 27 percent and African-Americans 52 percent to 34 percent.

The majority of courts as well as the majority of Americans believe that our marriage tradition is not unconstitutional bigotry.

Gay marriage advocates are now hoping for a technical knockout -- for the 9th Circuit to rule that the voters of California have no standing to challenge Walker's ruling. This may be a sign they understand how extreme and weak Walker's ruling actually is, how unable it is to withstand substantive review by higher courts. Ted Olson goes on TV claiming he has proved there's no possible case for opposing gay marriage. Now he's in court trying to block any higher court from reviewing his handiwork.

Does that sound like the behavior of people with an airtight logical case to you?