January 13, 2010

Courting Intimidation: the Supremes Sing Out

Hatched by Dafydd

A fast follow-up to the second of our two previous "Courting Intimidation" pieces:

In the second post linked above, we predicted that the Supreme Court was poised to make permanent its temporary ban on the cameras set to record all the proceedings in Kristin M. Perry v. Arnold Schwarzenegger (Perry v. Schwarzenegger); that is the federal case filed to (once again) overturn the repeated vote of Californios to define marriage in the traditional way, most recently in Proposition 8, which easily passed on November 4th, 2008.

We argued that the only purpose and result of the video broadcasting on YouTube would be to make all the pro-traditional-marriage witnesses easier targets for harassment, intimidation, vandalism, and assault, with an eventual eye towards terrorizing the "designated defendants" into fleeing the case, thus allowing those pushing same-sex marriage to win by default.

Today, we read this:

The Supreme Court voted 5-4 to block the broadcast of a federal trial in California testing whether a voter initiative against gay marriage violates the Constitution.

The high court's five conservatives formed the majority. They said federal judge Vaughan Walker didn't follow court rules when he ordered proceedings broadcast by closed circuit to federal courthouses in several cities.

The Supreme Court's four liberals joined a dissent written by Justice Stephen Breyer.

For the record, that would be Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito in the majority; Justices John Paul Stevens, Ruth Bader Ginsberg, Stephen Breyer, and Sonia Sotomayor dissenting.

Not only was our prediction correct, so too was our reasoning:

The proposition's defenders said broadcasting the proceedings could expose witnesses favoring the gay-marriage ban to harassment and ridicule. The Supreme Court majority backed that view, saying Proposition 8 supporters would likely suffer "irreparable harm" if the proceedings were shown through the closed-circuit feed.

The Court did not rule on the question of putting videos up on YouTube, saying the motion was "premature." They want to wait until the Ninth Circus rules on that first, but I suspect the same actors will line up in the same order if necessary.

We repeat our main predictions:

  1. U.S. District Court Judge Vaughn Walker (Bush-41) will certainly rule in favor of the plaintiffs, striking down Proposition 8, the citizens initiative constitutional amendment that restored the original definition of marriage. He has signalled over and over that he has already made up his mind, and the actual hearing is merely a show trial, a necessary evil before he can rule by decree.
  2. The three-judge panel of the Ninth Circuit Court of Appeals will uphold Judge Walker's ruling.

    (2a) Judge Stephen Reinhardt will wind up on that panel and will write the majority opinion affirming Walker's ruling. (Yes, this one is specifically for Patterico!)
  3. If there is an en-banc hearing, the entire Ninth Circus will narrowly uphold the panel's decision upholding Walker's decree that voters in California have no right to enact state constitutional amendments that the Left doesn't like.
  4. The Supreme Court will accept certiorari on the case... and by the same 5-4 vote (though either Stevens or Ginsberg might by then be replaced by another doctrinaire liberal) will overturn the Ninth's ruling, restoring traditional marriage to California.
  5. Finally, this time there will be a stay on each ruling until the USSC makes its final ruling, so no more same-sex couples will be fortunate enough to slip through the cracks and get married.

We'll see how well we do. I believe that in the end, we'll have a Supreme Court ruling that nothing in the U.S. Constitution mandates same-sex marriage.

Keep watching the skies.

Hatched by Dafydd on this day, January 13, 2010, at the time of 5:35 PM

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The following hissed in response by: snochasr

So, would this make it less necessary for a federal Constitutional amendment defining marriage? Seems to me it would.

The above hissed in response by: snochasr [TypeKey Profile Page] at January 13, 2010 8:03 PM

The following hissed in response by: LarryD

The risk is that one state will recognize same-sex-marriage (despite the will of its populace), and that the "full faith and credit" clause of the Constitution will be used to make all the other state follow suit.

It worked for slavery.

The above hissed in response by: LarryD [TypeKey Profile Page] at January 14, 2010 7:51 AM

The following hissed in response by: Dafydd ab Hugh


The "full faith and credit" risk is greatly lessened since 1996, with the enactment of the Defense of Marriage Act (DOMA, a.k.a. 1 U.S.C. § 7 and 28 U.S.C. § 1738C). The act includes the following passages as its core:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship....

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

Thus if DOMA is constitutional, that resolves the "full faith and credit" threat.

Several federal courts have heard challenges to the constitutionality of DOMA; but so far as I know, each has sided in DOMA's favor.

One quasi-exception was a case where Ninth Circus Judge Stephen Reinhardt -- who, as Patterico notes, somehow manages to shoehorn himself onto every controversial federal case within the Ninth Circuit, so he can decide it in favor of the leftist position -- ruled that DOMA was unconstitutional; but he was sitting as a "dispute resolution official," not speaking for any federal court or appellate court.

The lawsuits continue; in fact, our old pal Martha Coakley, Democratic senatorial nominee for the special election this Tuesday and currently Attorney General of "Massachusettes" (as she embarassingly dubbed her state in a recent campaign ad), filed Commonwealth v. United States Department of Health and Human Services last year challenging DOMA. And Smelt v. United States of America challenges DOMA and threatens to overturn Proposition 8.

So far, DOMA has withstood all challenges, even though the Supremes have not gotten involved. If one of these cases did strike down DOMA, and if that decision was upheld by an appellate court, then I think the Supreme Court would step in -- and I'm fairly sure it would rule in favor of DOMA by 6-3, if Stevens is still on the bench then, and by 5-4 if he has been replaced by an Obama judicial pick.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at January 14, 2010 12:05 PM

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