This just in from long FlashReport friend and Constitutional Law expert and scholar John Eastman…

An Honest Ruling on Proposition 8 – Finally!
By John C. Eastman

Dr. John Eastman

Three cheers for the California Supreme Court.  After three years of legal skirmishing in which many of the most basic tenets of law have been thrown overboard in pursuit of the agenda pushed by the proponents of same-sex marriage, California Chief Justice Tani Cantil-Sakauye and her colleagues on the Court have recognized that the official proponents of an initiative have the legal right to defend their initiative in court when the elected officials of the state refuse to do so, in violation of their duty to “defend all causes to which the State . . . is a party.”

The decision was comprehensive and well-reasoned.  It was also unanimous, so kudos are also due to recent appointee Goodwin Liu who, by joining the opinion, repudiated the decision of the Governor who appointed him, for refusing to defend Proposition 8 when he was Attorney General.

Contrast this decision, though, with the history of this litigation thus far.  After losing the argument in the state courts that the people of California did not even have the authority to amend their own state constitution, the groups seeking to alter the traditional definition of marriage landed in the federal district court in San Francisco before Judge Vaughan Walker, who ruled that Proposition 8 was unconstitutional only after refusing to recuse himself even though, as he subsequently revealed, he was himself in a long-term, committed homosexual relationship of the very kind that will benefit from his ruling.  The code of judicial ethics expressly requires judges to recuse themselves from deciding any matter in which they have a financial or other interest, or in which their objectivity might reasonably be questioned.

Given the obvious lack of objectivity on the matter, it is probably no surprise that the Judge also ignored governing Supreme Court precedent, and rejected governing Ninth Circuit precedent and the rulings of nearly every other court in the court to have considered the issue.  He proposed to televise the proceedings in violation of court rules, and proceeded to do so anyway even after the Supreme Court of the United States issued an order prohibiting the proposal.

Judge Walker also allowed the City and County of San Francisco to intervene in the case in support of the plaintiffs challenging Proposition 8, but he refused to allow Imperial County to intervene in defense of the Proposition.  This latter point is particularly noteworthy, given that all of the state officials named as defendants in the suit either refused to defend against the lawsuit or, as in the case of the Attorney General, actually joined with plaintiffs in arguing that the initiative was unconstitutional.  The collusion was so palpable that at one point in the trial court proceedings, Judge Walker even ordered that the Attorney General coordinate with San Francisco, which he had allowed to intervene on the plaintiffs’ side of the case!

The gamesmanship does not stop there.  Although Plaintiffs and the state defendants did not object when Judge Walker allowed the official proponents of the initiative to intervene in the trial court, on the ground that California law recognizes their right to do so, those same plaintiffs and state defendants, and Judge Walker himself, argued just the opposite when time came for the official proponents to file an appeal when the elected officials of this state refused to do so.  Apparently, for them, the basic adversarial concept of our system of justice had to give way to the agenda.  Much easier to win if no one is allowed to argue the other side of the case!  Sun Tsu would be proud.

Now some might argue (indeed, have argued) that the constitutional issues in this case so clearly favor overthrowing centuries of legal and cultural understanding that defines marriage as between one man and one woman that it is perfectly acceptable to ignore arguments to the contrary.  Although the California Supreme Court’s decision this week did not address the merits of that underlying fight, it took a major step toward restoring the idea that the law matters.  It carefully and comprehensively reviewed the governing law on the subject of whether initiative proponents have the legal right to act as agents of the state and defend a voter-approved initiave with the state’s elected officials will not.  It reviewed holdings of the Supreme Court of the United States not with a thumb on the scale toward a predetermined outcome, but in a serious attempt to understand the full import of the holding.  It also carefully read the principal Supreme Court case suggesting the initiative proponents might not have legal understanding, correctly recognized that the relevant language was non-binding dicta, and logically analyzed the competing decisions to draw the only conclusion that reasonably could be drawn.

It is important to note that this decision merely sends the case back to the federal Ninth Circuit Court of Appeals, where it is almost certain that Judge Walker’s decision holding Proposition 8 unconstitutional will be upheld.  Heck, one of the judges on the panel considering the case has refused to recuse himself even though he has his own ethical obligation to do so—his wife was involved in the case at the trial court, which resulted in the decision that the judge is now going to review.  But the California Supreme Court’s decision this week is noteworthy for its rededication the rule of law and the basic precepts of our adversarial system of justice, even in the face of an emotionally-charged case such as the Proposition 8 litigation.  Whether or not the Ninth Circuit follows suit, that principle will serve the proponents of Proposition 8 well when the case ultimately heads to the Supreme Court of the United States.

Dr. Eastman is the Henry Salvatori Professor of Law & Community Service at Chapman University School of Law.  The views expressed here are of course his own (indeed, at distinct odds with most of his colleagues at the University).  He is also the founding Director of the Claremont Institute’s Center for Constitutional Jurisprudence, on whose behalf he filed a brief in the Proposition 8 litigation strenuously arguing the position adopted by the California Supreme Court.

This entry was posted on Friday, November 18th, 2011 at 2:49 pm and is filed under Blog Posts.