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Focus relies on Meese; you'll have to settle with Me

by Jeremy Hooper

Focus on the Family's Jenny Tyree has highlighted what she finds to be the strongest arguments from a recent Op-Ed penned by conservative personality Edwin Meese. So that being the case, we will now look at those same arguments, then proceed to obliterate them. Let's get started.

#1 Meese-ism:

By refusing to acknowledge binding Supreme Court precedent, substantial evidence produced at trial that was contrary to the holding and plain common sense, the ruling exhibits none of the requirements of a traditional decision.

Okay, so the supposed "binding Supreme Court precedent" is 1972's Baker v. Nelson case. And it was not completely unacknowledged -- Judge Walker pointedly asked Ted Olson about that very case on the closing day of arguments:

THE COURT: Well, now, the Supreme Court in the Baker vs. Nelson case, decided that the issue which we are confronted with here was not ripe for the Supreme Court to weigh in on. That was 1972. What's happened in the 38 years since 1972?

Well, a great deal has happened. Among the things that have happened is the Romer case. Among the things that have happened is the Lawrence vs. Texas case. You know what those cases involve. A lot of other things have happened. Changes in the ballot propositions. California has adopted something completely different than the state -- I guess it was Minnesota or Michigan, involved in that case. So there are a lot of factual situations that are different. This case is very different.

And, by the way, the Supreme Court rejected the opportunity to take a miscegenation case. Now, I think it was -- Dr. Cott testified to this. I think it was 1955. And then they took the case, the
Loving case, in 1967.
CONTD: Closing Arguments [AFER]

But as Olson aptly mentioned: The reality of both the world and the law has greatly changed since 1972. Romer v. Evans. Lawrence v. Texas. DOMA and anti-LGBT ballot initiatives, which while anti-equality, certainly raise new legal questions about the constitutionality of bias that did not exist in 1972. Plus the undeniable reality that is five U.S. states and one jurisdiction in our nation's capital with equality, as well as the many other countries with marriage equality abroad. And the civil unions and domestic partnerships that are spread all over, including in California.

So it is absurd to suggest that a 38-year-old, one sentence order that dismissed the case "for want of a substantial federal question" (and that was heavily based in the procreation argument) has bound the Supreme Court's gavels here in 2010. In the almost four decades since, other SCOTUS and legislative matters have changed the law and thus distinguished the two cases. And the matter before the court is the unconstitutionality of current law, not that which existed when Marcia Brady was still on first-run TV!


Sound judicial opinions consider the facts and evidence on both sides of an argument, apply them fairly to the dispute at hand and determine which legal cases are on point. Yet Walker’s opinion pretends that the voluminous evidence introduced on the side of Proposition 8 does not exist.

This one's absolute bullshit! Walker's 136-page decision totally acknowledged the (weak) evidence and (few) "experts" that the Prop 8 proponents presented. He simply rejected it. BIG TIME! Why can't social conservatives understand that? Weighing evidence is kinda, sorta what Judge Walker is supposed to do.


Despite ample evidence introduced into the record that only a union of a man and woman can produce offspring (as if that needs proof), Walker’s opinion denied the relevance of that biological fact.

Hogwash again. Judge Walker did not deny the relevance of reproduction AT ALL. What he denied is the idea that procreation (or the lack thereof) should have any bearing on a couple's civil marriage status! That is a MAJOR difference.

The procreation argument may have had its run in court. But in a world where all opposite-sex couples are allowed to marry regardless of child status, where no child quotas are attached to the civil marriage license, and where gay and lesbian couples are parenting at higher rates than ever before, it's just plain common sense to see that the procreation argument has crossed its tipping point. Even a non-mandated child can see that.


Having ignored everything courts typically rely on in making sound judgments, Walker concluded that Proposition 8 was enacted “without reason” and demonstrates “a private moral view that same-sex couples are inferior to opposite-sex couples [and are] . . . not as good as opposite-sex couples.”

This lil' nugget is particularly galling. Because here we are talking about the Prop 8 campaign, one that heavily relied on religious figures (e.g. Jim Garlow, Lou Engle, Miles McPherson, Chris Clark, the Mormon church, Bishop Cordileone, the usual "pro-family" national groups and figureheads) and on arguments that said or implied gay couples would somehow scare kids in schools (e.g. the ads about school books, the ad about a lesbian teacher taking her class to her wedding ceremony, etc.). So yes, OF COURSE Judge Walker found that a "private moral view" was used to suggest that same-sex couples are less than ideal! Because that is what the "pro-family" side did. And does. Daily.

But Judge Walker *did not* ignore "everything courts typically rely on": In actuality, it's the anti-LGBT side that did! They ignored the crucial elements of credible witnesses, facts that can withstand scrutiny, and arguments that cut the constitutional mustard! The judge even took note, asking them if they were sure they were satisfied with what they had presented. But they were. Even though they shouldn't have been.

Although to be frank, what else did they really have -- Matt Barber's "ex-gay" suggestion?! Oh how we wish they'd have gone there!


The rule of law demands more careful consideration of this important issue than Walker’s decision delivered.

No, the truth is that the independent judiciary demands more respect than the anti-equality forces are delivering! In the days since Walker's decision, we've heard the anti-LGBT troops drum up innuendo about the judge's sexuality, cherry-pick and reduce the most conveniently spinnable lines from the lengthy opinion, ignore or excuse their own incredibly feeble court presence, war with each other, and of course attack the courts as "activist." Some have even suggested that they would simply ignore a potential Supreme Court ruling in favor of equality. All because they think that minority rights should, for the first time in history, be terminally stifled because of the whims of a bare, drastically changing majority.

It's easy to write off a (Republican-appointed) judge as a "liberal gay activist" rather than objectively look at what led him to his findings. But this easy, baseless route is what led the social conservatives to their increasingly losing position on this (non)issue. The more they refuse to reflect, the easier time we will have turning Walker's legal template into one that higher courts will mirror.

Oh, and let's not forget, Mr. Meese: When it comes to Vaughn Walker's booty on the federal bench, you only have yourself to blame!

*Jenny Tyree's piece, with all Meese quotes and a link back to his full Op-Ed: Meese: Judge Walker’s decision not the definitive word [FOtF]

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