Prop 8

Conservatives have been very confused and upset for quite some time now that their former hero Ted Olson not only supported marriage equality but actually became a leading advocate, playing a key role in getting Proposition 8 struck down.

What on earth happened to Olson, George W. Bush's Solicitor General and Federalist Society stalwart, they wondered?    

Well, now we know:  his new Jezebel of a wife has brainwashed him ... or so says the National Organization for Marriage:

How did Mr. Federalist Society decide it’s okay to use the U.S. Constitution to require gay marriage? The New York Times is reporting that his new young Democrat wife may be a key reason.

This NOM post in turn links to this post by Ed Whelan who says that he will wisely "refrain from further comment" on how Olson's wife has completely destroyed his integrity: 

Ted Olson and his anti-Prop 8 media machine have been aggressively leveraging his past associations with conservative legal causes in support of his newfound support for the invention of a constitutional right to same-sex marriage. In so doing, they’ve tried to obscure the fact that the position that the Constitution can and should be interpreted to invalidate traditionalmarriage laws can’t possibly be reconciled with the conservative legal principles that Olson used to purport to stand for. (I’m not addressing here the very different question whether a conservative can soundly support legislative revision of marriage laws to include same-sex couples.)

For anyone who has wondered what really accounts for Olson’s new position, I pass along these excerpts from a New York Times article last week on the influence of Lady Booth Olson, Olson’s wife since 2006:

Lady Olson was more than just a minor behind-the-scenes player in this potentially pivotal case.

“Lady could not have been more supportive of this,” Mr. Olson said in an interview shortly before Vaughn R. Walker, chief judge of the United States District Court hearing the case, ruled on Aug. 4 that Proposition 8 was unconstitutional. “And she’s certainly influenced my views — her ideas, her approach, her feelings.” …

Mr. Olson’s previous wife, Barbara, was a conservative commentator who was killed on Sept. 11, 2001, when she was on the hijacked plane that crashed into the Pentagon. Some friends hypothesize that Lady Olson just might have softened some of her husband’s views.

“In my innermost thoughts, I like to think he thought that on some level, but Ted’s never said that,” Mrs. Olson said. “He’s very proud. He owns his own decisions.”

I think that I’ll refrain from further comment.

• Peter LaBarbera wants Ann Coulter to donate her GOProud fee to some "worthy pro-family organizations." Good luck with that.
• Good news: Rick Joyner has successfully restored Todd Bentley.
• Jennifer Roback Morse explains that "David Blankenhorn didn’t mess up in the Prop 8 Trial."
• Maggie Gallagher says the anti-Prop 8. side wants the appeal thrown out on the issue of standing because "they understand how extreme and weak Walker's ruling actually is, how unable it is to withstand substantive review by higher courts."
• Eugene Delgaudio and Public Advocate are now targeting Augusta State University, which they say is "brainwashing" it students "just as the North Koreans do to their people."

For the last few weeks, we've been chronicling Chuck Colson's plan to raise up a nationwide opposition to gay marriage in an attempt to sway the Supreme Court by demonstrating that Americans will not tolerate any decision that recognizes marriage equality.

And he is still at it, again making it the focus of his newest "Two Minute Warning" video. In this one, Colson says that Republicans have taken social conservatives for granted for too long and this year are trying to downplay social issues in order to focus on economic issues as a winning election strategy.  That is obviously unacceptable, so it is up to Christians to tell them "they are full of prunes, our consciences cannot sit on the back burner" (skip ahead to the 2:40 mark):

Colson also apparently intends to use the Dominionist/7 Mountains-themed Pray and ACT organization founded by Jim Garlow and intimately tied to Lou Engle and The Call as a means of mobilizing activists for his crusade, as his likeness is now featured all over the Pray and ACT website and he's even recorded a video touting its importance:

Now that Bryan Fischer has hit the big time, I think it is important to remind everyone of a simple fact: Fischer generally has no idea what he is talking about.

Remember a few weeks back when he was claiming that the ruling striking down Arizona's draconian law was unconstitutional on the grounds that the Constitution says the Supreme Court is to have "original jurisdiction" over "all cases...in which a State shall be Party"?  That argument turned out to be so ludicrous that even WorldNetDaily dismissed it as nonsense.

Well, Fischer is once again demonstrating his legal genius, blasting Judge Vaughan Walker for suggesting opponents of his Prop 8 ruling might not have standing to appeal.  Here's is Fischer's brilliant analysis:

Judge Walker appears oblivious to the blatant self-contradiction in his ruling. If Prop. 8 proponents do not have standing, what in the world was he doing allowing them to argue in his courtroom on behalf of natural marriage for two weeks?

Oh, that's right, it gave him the chance to be the center of the universe for one brief shining moment. For him to have denied standing would have deprived him of his fifteen minutes, and he wasn't about to put up with that. He granted standing just long enough to get his picture in every newspaper in the country and become the darling of the effeminate left. He even tried to become a daytime TV star until the Supreme Court smacked him down. And then, when his fifteen minutes were up, he tried to tell everybody to go home.

...

The Ninth Circuit has scheduled a court date for the appeal of Judge Walker's ruling, but curiously have directed the proponents of Prop. 8 to come before it and address the issue of standing.

What the Ninth Circuit has done, in all its infinite judicial wisdom, and without apparently even realizing it, is to settle this question before it's even argued in court. For if the proponents have standing to argue standing, then they have standing. If they have no standing, they shouldn't have been scheduled even to make arguments for standing.

The mere fact that the Ninth Circuit is inviting them into court to make the case for standing means, if logic and consistency mean anything, that the court has already decided this question in the affirmative.

We'll see if they're rational enough to figure out what they've done here. Being as how they're liberals, all bets are off on that one. They can hardly now rule against the standing of Prop. 8 proponents, because a higher court will say, well, if they had no legal right to be there, why did you even let them in your court in the first place?

First of all, Walker didn't say Prop 8 proponents didn't have standing in the initial case, he said they might not have standing to appeal ... and the issue standing is going to be an important question in moving the case forward in the appeals process: 

[A]dvocates of Prop 8, who are launching the appeal, may not have the necessary standing to carry it forward. The case is titled Perry v. Schwarzenegger, with Gov. Arnold Schwarzenegger and other officials in the position of defending the ballot initiative. But those officials, who are sympathetic toward gay marriage to varying degrees, are not inclined to appeal Walker's ruling.

Under Supreme Court precedent, it's unclear that proponents of legislation would have standing to defend it if state officials are not themselves defending it, because they can't show that they are suffering the necessary injury. In Arizonans for Official English v. Arizona, a 1997 case, the Court expressed "grave doubts" about the ability of such groups to challenge rulings that strike down ballot initiatives.

"There is a very serious standing issue," said George Washington University Law School associate dean Alan Morrison, a longtime expert on standing and civil procedure. The Arizona precedent, he said, "came right up to the edge" of saying there was no standing for groups like those that favor Proposition 8. Morrison also noted that since that ruling, new members like Chief Justice John Roberts Jr. and Samuel Alito Jr. have joined the Court and are "no friends of expanding standing." Setting high standards for standing has been one of several gatekeeping procedural doctrines conservative justices have used to weed out what they view as excessive or frivolous litigation from the courts.

The issue of standing is the very question the Ninth Circuit is going to be examining and why the court is explicitly telling Prop 8 supporters who are appealing Walker's ruling "to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing."

The fact that Prop 8 supporters are going to be in court does not prove that they have standing because that is the very question they are going to be in court trying to decide.

• PFAW Statement: Prop 8 Judge Denies Permanent Stay on Marriages.
• Justin Elliott @ Salon: Florida Republican: Put immigrants in "camps".
• Towleroad: Glenn Beck: Gay Marriage is Not a Threat to America.
• Crooks & Liars: Wingnut Texas Rep. Debbie Riddle Pushes Louie Gohmert's 'Terror Babies' Conspiracy Theory.
• Megan Carpentier @ TPM: 'Ground Zero Mosque' Imam Was A Bush-Era Partner For Mideast Peace.
• Media Matters: Knight's latest anti-gay Wash. Times op-ed: Gay marriage "is a fantasy cooked up in hell".
• Andrea Nill @ Think Progress: Huckabee: It’s Good For America If Young Undocumented Immigrants Go To College And Become Citizens.
• Matt Finkelstein @ Political Correction: Cantor On Ground Zero Mosque: Everyone Has Rights, "But Come On".

Earlier today I posted audio of David Barton talking with Tim Wildmon and Marvin Sanders of the American Family Association about his relationship with Glenn Beck, but now I want to highlight a more important piece of that discussion that occurred later in the interview when they were discussing the Prop 8 ruling.

All three were convinced that the case was eventually going to end up before the Supreme Court and that when it does, Justice Anthony Kennedy was going to be the deciding vote in favor of allowing gay marriage.  As such, Barton revealed that there is some talk on the Right of not appealing or fighting the Prop 8 ruling and letting California have gay marriage in order to keep the case away from the Supreme Court and thereby saving the marriage amendments in all the other states:

Barton: Right now the damage is limited to California only, but if California appeals this to the US Supreme Court, the US Supreme Court with Kennedy will go for California, which means all 31 states will go down in flames, although right now this decision is limited only to California.

So there's an effort underway to say "California, please don't appeal this. I mean, if you appeal this, its bad for you guys but live with it, but don't cause the rest of us to have to go down your path."

Wildom: So you think the better situation here would be California not to appeal ...

Barton: Well, I'm telling you that that's what is being argued by a lot of folks now because the other Supreme Court attorney who watched this from afar said "on no, you left too many arguments on the table, you stayed technical." And now, knowing what Kennedy has already done in two similar cases to this and knowing that he's the deciding vote, the odds are 999 out of 1000 that they'll uphold the California decision.

If they do, there's not a marriage amendment in the country that can stand. And so the problem is that instead of California losing its amendment, now 31 states lose their amendment. And that won't happen if California doesn't appeal this decision. It's just California that loses its amendment.

Last week we noted how Chuck Colson had come up with a plan, in the wake of the Prop 8 ruling, to prevent the Supreme Court from ruling in favor of gay marriage: build a groundswell of opposition to the idea for the sole purpose of convincing that Supreme Court that any ruling recognizing the right to marriage equality will not be accepted by the people.

And that is exactly what he is setting out to do, saying in this new video that "of course, the Justices will listen to legal arguments, they'll weigh the precedents, but in the final analysis they will not approve gay marriage if it goes against an overwhelming public consensus":

So you can forget all about the Right's supposed commitment to the idea that cases must be decided on the merits and rulings must be based on foundational Constitutional values and principles because, according to Colson, the role of the Supreme Court is to simply issue decisions that reflect the will of the majority. 

And that is why Colson is on a mission to mobilize right-wing activists so as to convince the Supreme Court that any decision recognizing gay marriage will lead to "cultural armageddon." 

• Former Senator Ted Stevens died in a plane crash last evening.
• FRC hails conservatives in the House for their resolution condemning Judge Walker's Prop 8 decision.
• Is the Handel vs Deal race for Governor in Georgia really a proxy war between Sarah Palin and Mike Huckabee?
• Cliff Kincaid laments that some conservatives are willing to associate with gays, saying that "it "looks like surrender or suicide to me."
• On a related note, Peter LaBarbera begs Ann Coulter not to speak at GOProud's Homocon 2010 conference, to which GOProud responded by telling LaBarbera that he really needs to spend "less time obsessing about gay sex and hanging out at gay Pride events."

Bryan Fischer has already made it quite clear that the does not approve of Judge Vaughn Walker's decision in the Prop 8 case, citing it as proof as to why gays should be banned from serving in public office and claiming that gays no different from murderers, liars, thieves, and slave traders.

But Fischer isn't done, as he has just posted five news posts chronicling his outrage.  In addition to posts saying that Walker has declared seven million Californian's, along with President Obama and Vice President Biden, to be guilty of a hate crime with his ruling, we get things like this post where he renews his call for Walker's impeachment:

Were Judge Vaughn Walker to be impeached, as I believe he should, what would be the grounds? Remember that according to the Constitution, federal judges hold office “during good Behaviour.” The question then is, what constitutes bad behavior, behavior that so violates a judge’s oath of office and his public duty that it may be considered grounds for removal?

His ruling is an expression of judicial and political tyranny, and that alone should constitute grounds for removal. it was this kind of tyranny that prompted the Founders to separate from England. If such tyranny is grounds in America to remove a king from office, it is certainly sufficient to remove a judge from office.

Now I am no historian, but I am pretty sure that the Revolutionary War didn't result in removing the King of England from his office, nor was that its purpose.  

Elsewhere, Fischer claims that because Walker is gay, he should have recused himself because he could not possibly have rendered a fair decision:

Elected officials are directly accountable to voters in a way that federal judges are not. It is wholly inappropriate for a judge, let alone a practicing homosexual, to be the decider in a controversy of this magnitude.

Judge Walker appointed himself a one-man super-legislature, and it was unethical for him to do so because his mind was already made up on this huge public policy issue. Through his own lifestyle choices, he has made it clear that he, without any question, thinks there is a moral and legal equivalency between homosexual and heterosexual conduct.

...

It was, in a similar way, impossible for Judge Walker to sit as judge in any case in which the parity of homosexual and heterosexual conduct was an issue. He had far too much of a personal stake in this matter to even pretend to be a neutral umpire. He was going to call this one for the visiting team before the first pitch was thrown.  

Just out of curiosity, what do you suppose Fischer's response would have been if this case had come before a judge who was an open and practicing Christian and we demanded their recusal on the grounds that they could not possibly be fair because they "had far too much of a personal stake in this matter to even pretend to be a neutral umpire"?

But Fischer saves the best for last, claiming that gays have all the same marriage rights as anyone else and that what they really want is "special rights": 

Perhaps the most ridiculous thing about Judge Vaughn Walker’s ruling in the Prop. 8 case is that he claimed to give homosexuals something they in fact already have: full marriage equality.

Homosexuals right now, as you are reading these words, have full marriage equality in America. There is no place in the United States where they don’t.

They have exactly, precisely the same right to get married that every other American has: to a non-relative adult of the opposite sex.

Don’t let homosexual apologists fool you here. They already have full marriage equality. Nobody anywhere has deprived of them of their right to marry. Period. They have exactly the same right to marry that you and I do, no more, no less.

What they want is not equal rights, but special rights. They want a special exemption carved out for them so that their sexually aberrant relationships can be recognized as marriages, an exemption we don’t grant to folks who want to marry a son or a daughter, or a mother or a father, an uncle or an aunt, or a child.

By the same logic, one could argue that bans on interracial marriage were entirely reasonable as well, because every race had exactly the same right to marry someone of their own race.  As such, anyone who wanted the right to marry someone of a different race was seeking "special rights" by forcing society to recognize their "aberrant relationships."