U.S. District Court Chief Judge Vaughn Walker is presiding over Perry v. Schwarzenegger. Sources say Walker is homosexual.
SACRAMENTO – A San Francisco district court judge who is reportedly homosexual will decide soon whether to overturn the will of California voters and strike down Proposition 8 – the state’s constitutional amendment that defines marriage as the union of one man and one woman – in a landmark trial that many say is likely headed to the U.S. Supreme Court.
Voters first approved the definition of marriage as a union between a
man and a woman as a state law in 2000, then again in 2008 as an
amendment to the state constitution with 52 percent of the vote. Later,
the state Supreme Court, reversing its own ruling from only months
earlier, affirmed 6-1 that the provision is constitutional.
While Republican Gov. Arnold Schwarzenegger and Democrat Attorney
General Jerry Brown are listed as defendants in the lawsuit, both have
opposed Proposition 8 and refused to defend it in court – forcing the
private attorneys to defend the law.
Defense Fund attorneys, along with lead counsel Charles Cooper and
ADF-allied attorney Andrew Pugno, have intervened on behalf of ProtectMarriage.com, the
group that sponsored the amendment campaign. They are defending
Proposition 8 again in a trial that ADF warns could impact marriage laws
in as many as 45 other states – including the 30 states where voters
adopted state constitutional amendments.
ADF senior legal counsel Austin Nimocks spoke to WND as he left the courtroom today.
“I think the closing arguments went very well, especially the arguments of Charles Cooper,” Nimocks said. “All the legal bases were covered, and I think he did an excellent job articulating why the voices of more than 7 million Californians, in enacting Prop 8, were constitutional voices with the full entitlement to do exactly what they did.”
Nimocks added that regardless of how the judge rules, the case is likely to be appealed to the 9th Circuit Court of Appeals. Then the losing side will likely appeal that ruling to the U.S. Supreme Court, though the court is under no obligation to review the case.
“In 1972, the U.S. Supreme Court already ruled on same-sex marriage, ruling that there was no fundamental right to same-sex marriage,” he said. “It’s quite possible that the high court doesn’t need to revisit this issue that’s already decided.”
Lesbians’ lawsuit ‘could impact laws in 45 states’
Kristin Perry, 45, the lead plaintiff who filed the lawsuit in May 2009, is a lesbian who married her female partner, Sandra Steir, in 2004 when San Francisco Mayor Gavin Newsom ordered city officials to issue marriage licenses to homosexual couples. She and her partner live in Berkeley with their four sons.
Perry, who told Newsweek she was elated when President Obama was elected, works as a child advocate for First 5 Association of California, a state commission that focuses on newborns to 5-year-olds.
Kristin Perry, lead plaintiff (photo: West Hollywood News)
Perry had her homosexual union invalidated by the state Supreme Court. Several other homosexual activists have taken their complaints to federal court as well.
In a statement today, Randy Thomasson, president of SaveCalifornia.com, a group that’s not party to the Proposition 8 case but defends traditional marriage,
declared, “The lawsuit against Prop. 8 … is more than an attack
against natural marriage. It’s an attack against our republic and our democracy. Our republic, because a judge took this case and made a circus out of it, despite the word ‘marriage’ not being in the U.S. Constitution and the 10th Amendment protecting states’ rights to define marriage. Our democracy, because the voters of California have twice passed ballot measures defining marriage, even defining marriage in the California Constitution.”
Thomasson added, “If the federal courts strike down Prop. 8, they will have declared war on the voters in the 30 states that have defined marriage in their state constitutions.”
Plaintiff and Perry’s female partner, Sandra Steir (photo: West Hollywood News)
The Associated Press reported Perry v. Schwarzenegger is bankrolled by “a group of liberal Hollywood activists led by director Rob Reiner.”
The Hollywood activists enlisted the help of two of the nation’s most influential lawyers – former U.S. Solicitor General Theodore Olson and trial lawyer David Boies – the same rival attorneys who represented George W. Bush and Al Gore in Florida’s “hanging chad” dispute after the 2000 presidential election.
‘Homosexual’ judge presides over Prop. 8 lawsuit
U.S. District Court Chief Judge Vaughn Walker is presiding over the case. As WND reported, media outlets have reported Walker is homosexual.
The San Francisco Chronicle reported politicians and lawyers in the city who have dealt with Judge Walker confirmed Walker has never tried to promote or hide his orientation.
The newspaper said a state senator, Mark Leno, who has proposed several times the authorization of same-sex “marriage,” described the judge’s background as a nonissue.
However, Matt Barber, director of cultural affairs with Liberty Counsel, disagreed.
“This is no different than having an avid gun collector preside over a Second Amendment case,” he said, “or a frequent user of medical marijuana deciding the legality of medical marijuana.”
The Chronicle cited support for the judge from Kate Kendell of the National Center for Lesbian Rights.
“There is nothing about Walker as a judge to indicate that his sexual orientation, other than being an interesting factor, will in any way bias his view,” she told the newspaper.
The San Francisco paper reported the judge not only has declined to respond to questions about the case, he’s also responded with “no comment” to questions about his sexual orientation.
Nimocks told WND today, “That certainly was not an issue that was raised in the courtroom.”
A Chronicle source who asked not to be identified said the judge “has a private life and he doesn’t conceal it, but doesn’t think it is relevant to his decisions in any case.”
Olson and Boies, attorneys for the plaintiff, are arguing that preventing homosexuals from marrying serves no legitimate public purpose and that the legislation was motivated by religious and moral beliefs and antigay bias.
Judge Walker provided 29 questions to both sides and the plaintiffs and defendants submitted their answers to those questions. They provided written responses in advance of today’s closing arguments.
Thomasson said Judge Walker “has been demanding answers to questions about issues that are not in the written federal or state constitutions, but are designed to set up the federal courts to unscientifically declare homosexuality an ‘immutable’ class, like race or sex.”
He said, “Doing this dirty judicial deed would trample religious freedom and free speech, which is specifically enshrined in the First Amendment.”
Plaintiffs: ‘Prop. 8 causes irreparable harm to gays’
Perry’s attorneys argued that Proposition 8 is not rationally related to a legitimate state interest.
“Voters’ unfounded and discriminatory stereotypes are not a substitute for proof that a law actually furthers a legitimate state interest,” they wrote. “Indeed, those who disfavor a particular group often genuinely believe and accept negative stereotypes about the disfavored group, even where such stereotypes are wholly unsubstantiated. The constitutionally relevant question for the rational-basis purposes is whether Prop. 8 in fact ‘advance[s] a legitimate government interest’ … – not whether the voters believed that it did.”
In an answer to the question, “What evidence supports a finding that maintaining marriage as an opposite-sex relationship does not afford a rational basis for Proposition 8?” Perry’s attorneys responded, “Merely ‘maintaining marriage as an opposite-sex relationship’ is not by itself a rational basis for Prop. 8. As an initial matter, neither tradition nor moral disapproval is a sufficient basis for a state to impair a person’s constitutionally protected right to marry.”
The plaintiffs added, “Moreover, the evidence demonstrates that maintaining marriage as an opposite-sex relationship to the exclusion of loving and committed gay and lesbian couples does not promote any legitimate government interest. To the contrary, doing so causes irreparable harm to gay men and lesbians and their families, and is fundamentally stigmatizing and discriminatory.”
Perry’s attorneys argued that the Supreme Court has recognized that freedom of personal choice in matters of marriage and family life is protected by the Due Process Clause of the 14th Amendment.
“Whether or not Prop. 8 was motivated by discriminatory animus, it is unconstitutional because it facially discriminates on the basis of sexual orientation and sex,” they wrote, arguing that “Prop. 8 was motivated by animus toward, and more disapproval of, gay and lesbian individuals.”
Perry’s attorneys claim homosexuals suffer from increased incidence of anxiety disorders, mood disorders, substance-abuse disorders and higher rates of attempted teen suicide. They said discrimination exposes “lesbians and gay men and those perceived to be gay to harassment and violence.”
“Eliminating the discrimination and stigma that is created and perpetuated by Prop. 8 will result in better mental-health outcomes for gay men and lesbians, less school bullying and less harassment and violence against those who are or are perceived to be gay, and, in turn, reduce the costs that government incurs to investigate and prosecute acts of discrimination.”
Perry’s attorneys accused the LDS and Roman Catholic churches of pushing for passage of Prop. 8 and funding campaign messages that implied same-sex marriage is immoral. They are asking the judge to declare that Proposition 8 violates the U.S. Constitution and issue a permanent injunction against its enforcement and application throughout the state of California.
The plaintiffs’ responses can be found here.
Defendants: ‘Overturning Prop 8 nullifies will of the people’
ADF and Cooper argue that the proposition “neither infringes a fundamental right nor discriminates on the basis of sex” and that “gays and lesbians are not entitled to heightened protection under the Equal Protection Clause.” The team also argues that overturning Proposition 8 would undermine democracy by nullifying the will of the people.
They add, “California’s interest in increasing the likelihood that children will be born to and raised by their biological mothers and fathers in stable and enduring family units is a government interest of the highest order. … Proposition 8 furthers these interests by preserving the traditional definition and form of marriage and by providing special encouragement and recognition to those relationships that uniquely further California’s interests in increasing the likelihood that children will be born to and raised by their natural parents in stable and enduring family units.”
Cooper argued that “there will be significant consequences flowing from the adoption of same-sex marriage,” including a complete alteration of the public meaning of marriage “that will weaken the social norms that seek to discourage procreative sexual relationships and childrearing outside of marital bonds.”
“Redefining marriage in this way would also change its focus from the needs of children to the desires of adult partners, suggesting that the latter are paramount, as well as weaken the social understanding that, all else being equal, what is best for a child is to be raised by its married, biological parents and to have a mother and father,” they argue. “The evidence suggests that, as a result, there will be lower marriage rates, higher divorce rates and cohabitation, more out-of-wedlock children and fewer children raised by both of their biological parents.”
The Proposition 8 supporters also claim that allowing same-sex marriage would complete the “deinstitutionalization of marriage,” defining marriage as being for the benefit of those who enter it rather than as an institution for the benefit of society.
To solidify their argument, the defendants noted that since becoming the first nation in the world to institute homosexual marriage in 2001, the Netherlands has experienced “worrisome trends,” including the following:
- Fewer marriages. There was an average yearly decrease of .07 percent in the marriage rate from 2001 to 2008, following an average yearly increase of .02 percent from 1994 through 2000.
- More single-parent families. Single-parent families increased by an average of .08 percent annually from 2001 to 2008, after increasing by an average of only .032 percent annually from 1994 to 2000 – a jump of more than 150 percent in the annual rate of change.
- More unmarried parents raising children. From 2001 to 2008, nonmarried cohabitating couples with children increased at a 30-percent–greater average annual rate than they had from 1994 to 2000.
- More opposite-sex couples choosing an alternative status over marriage. In 2001, 2.05 percent of all opposite-sex couples entering marriage or a new registered partnership chose a partnership. By 2008, that figure climbed to 9.14 percent.
They also argued, “In addition, such a redefinition will likely infringe, or at least threaten, the First Amendment and other fundamental liberty interests of institutions, parents and other individuals who support the traditional opposite-sex definition of marriage on religious or moral grounds.”
Cooper added, “Furthermore, even if Proposition 8 were based in moral disapproval of homosexual conduct, it would not be unconstitutional. While proponents have not argued that a belief based in morality can never be discriminatory, it is plain that moral disapproval of homosexual conduct is not tantamount to animus, bigotry or intolerance. On the contrary, religions that condemn homosexual conduct also teach love of gays and lesbians.”
The Proposition 8 supporters said many issues are also intertwined with moral values: the death penalty, gambling, obscenity, prostitution and assisted suicide.
“[L]egislation regarding marriage must inevitably choose between, or attempt to balance, competing moral views. It is not only inevitable, but entirely proper, that voters’ decisions be informed by their most deeply held values and beliefs as such debates are resolved, as they should be, through the democratic process.”
The defendants’ responses can be found here.
“Ultimately, we live in a free and democratic society,” Nimocks said. “And the most fundamental right in a free and democratic society is the right to vote. That’s what’s on the line here – the right of more than 7 million Californians to make an important decision on a very important controversial issue of public policy.
“The plaintiffs are asking for that to be thrown out because they don’t like the result,” he said. “That’s not what America is about.”