Before Checkmate: How the Battle to Redefine Marriage is Changing

Yesterday, we highlighted the cowardly actions of the law firm of King and Spalding who, under the intimidation of the seemingly powerful same-sex lobby bailed on the U.S. House of Representatives defense of the Defense of Marriage Act.

Today, two more stories reveal both more details and salient warnings of things to come in the defense of marriage, as well as highlighting a major development in the legal defense of Proposition 8 in California.

First, Al Mohler in his characteristically wise way reports on more of the details involving King and Spalding’s refusing to take on an “unpopular” case and offers a warning:

Gay rights groups hailed the law firm’s decision. Activist groups such as the Human Rights Campaign had lobbied King & Spalding to drop the case. The Weekly Standard obtained copies of emails sent by the Human Rights Campaign to supporters that read, in part: “Later that day we announced the elements of our campaign to show King & Spalding’ hypocrisy for taking on Defense of DOMA while touting their pro-gay policies – including their 95% score on HRC’s Corporate Equality Index. … In the meantime we also contacted many of the firm’s clients, LGBT student groups at top law schools and used social media to inform the public about K&S’s wrongheaded decision.”

The success of the group’s efforts to intimidate King & Spalding serves as a warning of things to come. This is the kind of intimidation that will be used against any organization or institution — or law firm — that takes a controversial case and opposes the agenda of the gay rights movement. Watch and be warned.

via – A Warning of Intimidations to Come.

That includes you and me.  While, at this point in my career, I’m quite used to have the sticks and stones lobbed my way in the defense of life, marriage, and religious freedom, you need to be prepared to be likewise bullied when you dare take such a gracious stand at the water cooler, at the local market, or even at church.  It’s fair, I think, to believe that these efforts of intimidation will only increase in the coming years.

Second, lawyers in California who are defending Proposition 8, the constitutional amendment that defines marriage as between one man and one woman, have filed a motion to vacate Judge Vaughn Walker’s decision that overturned the amendment passed by over 7 million Californians in 2008. (In legalese, to “vacate” an order means “to make as if it never happened, invalidate, overturn.”)

Ed Whelan has catalogued a variety of good arguments that necessitated Judge Walker’s recusal from the outset of the trial.  He also posts the introduction portion of the Motion to Vacate (which I encourage you to read in toto), which includes these stunning facts in support:

The course of proceedings in this case has been marked by a number of irregular and unprecedented rulings, both procedural and substantive, that give gravely disquieting force to the “appearance of partiality” created by the belated disclosure of Chief Judge Walker’s long-term, committed relationship.  For example:

·     Before the trial even began, the Ninth Circuit issued an extraordinary writ of mandamus to overturn Chief Judge Walker’s order requiring Proponents to turn over confidential internal communications concerning the initiative campaign.  Perry v. Schwarzenegger, 591 F.3d 1147, 1152 (9th Cir. 2009).

·     Also before trial commenced, the Supreme Court of the United States issued an emergency stay, pending the filing of a mandamus petition with the Court, enjoining Chief Judge Walker from video recording and disseminating the trial proceedings to other federal courthouses.  The Court found that Chief Judge Walker had “ ‘so far departed from the accepted and usual course of judicial proceedings … as to call for an exercise of this Court’s supervisory power,’ ” and that he had violated the “proper rules of judicial administration … relat[ing] to the integrity of judicial processes.”  Hollingsworth v. Perry, 130 S. Ct. 705, 713 (2010).

·     Chief Judge Walker’s decision recognizing a right under the Federal Constitution for same-sex couples to have their relationships recognized as marriages conflicts with the judgment of every State and federal appellate court to consider the validity of the traditional opposite-sex definition of marriage under the Federal Constitution—including both the United States Supreme Court and the Ninth Circuit—all of which have upheld that definition.  Chief Judge Walker did not cite, let alone address, any of these prior decisions.

·     Chief Judge Walker peremptorily held that gays and lesbians are a suspect class under the Federal Constitution even though all eleven Circuit Courts of Appeals to consider the issue (including the Ninth Circuit) have repeatedly and squarely held to the contrary.  Chief Judge Walker did not even cite, let alone address, any of these contrary precedents.

·     Despite the unprecedented nature of his ruling and its sharp conflict with the uniform judgment of appellate courts throughout the Country, Chief Judge Walker refused to stay his judgment pending appeal.  As a result, the Ninth Circuit was forced to issue such a stay.

·     Shortly before his retirement from the bench, Judge Walker publicly displayed an excerpt from the video recording of the trial in this case in violation of (i) his order sealing the recording; (ii) this Court’s Rule 77-3; (iii) the Supreme Court’s decision in this case; (iv) the policy of the Judicial Conference of the United States and the Judicial Council of the Ninth Circuit; and (v) his own solemn assurance to Proponents that the trial recordings would be used solely in chambers.

The unprecedented, irregular, and/or peremptory nature of these rulings is difficult – very difficult – to take as the product of an objective, impartial judicial mind.  And while “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion,” the rulings summarized above are nevertheless highly relevant to the inquiry under Section 455(a).  The test is “ ‘whether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned,’” thus requiring recusal under Section 455(a).  A disinterested observer would necessarily consider the uniform train of extraordinary and unprecedented rulings favoring the gay and lesbian plaintiff couples and ultimately creating an unprecedented federal constitutional right for them to have their relationships recognized as marriages to be relevant facts in deciding whether Chief Judge Walker’s own long-term same-sex relationship, and the fact that he did not disclose the relationship prior to entering judgment, gives rise to a reasonable question as to Chief Judge Walker’s impartiality.

via Motion to Vacate Walker’s Anti-Prop 8 Judgment for Failure to Recuse – By Ed Whelan – Bench Memos – National Review Online.

It can rightly be concluded that, with the increased intimidation by same-sex activists and a smart litigation move by proponents of marriage, the battle to protect marriage from redefinition has shifted once again.  While it demonstrates the importance of upholding the constitutional notion of self-governance over judicial dictate, it reminds states like ours that any attempts to enshrine the traditional definition of marriage in our laws will be met with stern attacks, intimidation, and legal challenge.

Thankfully, our government relations team and allied organizations are prepared (and preparing) for just such an effort, so long as we can count on your partnership along the way.

About Jeremy Dys

Jeremy Dys is the FPCWV's President and General Counsel. In addition to his duties of providing strategic vision and leadership to the FPCWV, Dys is the chief lobbyist and spokesman. Dys is regularly featured in local, state, and national print, radio, and television outlets. He lives close to Charleston with his wife and growing family.

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