Sunday, August 8, 2010; A11
The Post asked policy advocates and political experts for their views on the fallout from U.S. District Judge Vaughn Walker's ruling last week overturning California's Proposition 8. Below, responses from Joe Mathews, Maggie Gallagher, Douglas E. Schoen, Lea Brilmayer, Jarrett T. Barrios and Ed Rogers.
Senior fellow at the New America Foundation
Two backlashes are possible as a result of this decision.
The first, a backlash from opponents of gay rights, is likely to be small. Yes, defenders of Proposition 8 will perform the ritual railing against judicial activists (and complain that the fix was in because the judge who issued the ruling is openly gay). But the facts of the case should put a damper on that. Judge Vaughn Walker is a Republican appointee known for conservative jurisprudence. And the stakes were relatively low; both sides in the case know that this is only one round in a long legal battle that seems headed to the U.S. Supreme Court.
The second possible backlash has to do with California and its direct democracy. Perhaps the spectacle of a federal judge overruling such a momentous electoral result will force Californians to reckon with the fact that their initiative process is at odds with norms of American civil rights and government. At the very least, my state needs routine judicial review of initiatives before they go on the ballot, so the public doesn't face the repeated frustration of passing something only to see it thrown out in court. Maybe this case will produce a backlash that pushes that reform forward.
Chairman, National Organization for Marriage
A litigator e-mailed me last week to say: "Walker's grandiosity will be his undoing." Even legal scholars who support gay marriage have expressed reservations about the ruling's "maximalist" nature. Instead of producing a lawyerly opinion, Judge Walker wrote an advocacy brief for gay marriage. I think it will backfire and the ruling is likely to be overturned, perhaps even at the U.S. Court of Appeals for the 9th Circuit.
In the meantime, the ruling -- a slur against the majority of the American people, who have been declared irrational bigots by a federal judge -- is firing up millions of voters, complicating an already difficult election for Democrats. Rush Limbaugh, who is not known as a social conservative, said, "The American people are furious. My e-mails are unbelievable. This federal judge yesterday, this decision, Prop. 8, California, has just put people over the edge, and all of these decisions are coming one after another from all corners of the federal government. It's as if we have absolutely no say in what is going on all around us. Decisions are being made for us, in lieu of us and imposed on us."
Rush is spot-on. This decision feeds into a larger narrative in which ordinary Americans believe they are losing control; that the powerful aren't responding to their views or values. The only way for people to respond to this kind of slur is through the political process.
At the National Organization for Marriage we are already seeing a flood of new activists and small donors, who are demanding we "do something" about this decision in November. This will revive marriage as a national issue, create new pressures for a federal marriage amendment, and put politicians who prefer to dodge on the spot.
As in 2004, Democrats will try to blame right-wing extremists for injecting the dread social issues into the campaign. But in truth, they will have Judge Vaughn Walker to thank.
DOUGLAS E. SCHOEN
Democratic pollster and author; adviser to President Bill Clinton
The court decision throwing out Proposition 8 will almost certainly hurt the Democrats in November. To be sure, it will activate gays and supporters of equal rights in California, New York and Massachusetts, and there may be some congressional districts in which this brings marginal benefits. Yet the decision effectively defies the will of the California electorate and has brought the issue of gay marriage front and center as the midterms approach.
It is almost certain that opponents of gay marriage vastly exceed supporters, both in number and intensity. But opponents' biggest advantage is their location. A disproportionate number of them live in swing states and swing districts crucial to the balance of power this November. Opponents of gay marriage will be motivated to turn out on Election Day in the same way opponents of immigration are likely to turn out because of a federal court ruling striking down parts of Arizona's immigration law.
Having seen up close the deleterious impact that the "don't ask, don't tell" policy had on President Bill Clinton's approval ratings, my colleagues and I warned the president in the 1990s that any movement toward embracing gay marriage could be fatal to his political position -- notwithstanding the equities in the matter.
Attitudes have evolved, and more support for gay marriage has been recorded in the past 10 years. Yet in an election in which many original supporters of President Obama are demoralized and are, by all accounts, less likely to turn out than his opponents, putting social issues into play only encourages his opposition.
Howard Holtzmann professor of international law at Yale Law School
The invalidation of California's Proposition 8 is based on the U.S. Constitution's due process and equal protection clauses -- not the California State Constitution -- and is potentially of national consequence. But while he rehearsed every nuance of the evidence introduced at trial, Judge Vaughn Walker left us with a remarkably limited and vulnerable opinion.
Because Proposition 8 came out of California's idiosyncratic ballot initiative process, it lacked the careful legislative record that most state statutes would enjoy. It was evaluated instead by reference to the sometimes unscientific or intolerant public claims of anti-gay campaigners. An impressive factual showing at trial was therefore essential to the legislation's survival.
The largest part of Walker's opinion is devoted to the evidentiary inadequacies of the defenders' case. Observing that their evidence was "dwarfed" by that of opponents of the proposition, and dismissing the testimony of key supporters' witnesses as "unreliable," the judge concluded that "the trial evidence provides no basis for establishing that California has an interest in refusing to recognize marriage between two people because of their sex."
Disappointed supporters will no doubt try again, arguing that this decision is a limited assessment of one particular factual record. As written, the decision lends itself to the conclusion that the failure was not with Proposition 8's legal content but with its supporters' sorry lawyering. This ruling is not going to settle anything.
JARRETT T. BARRIOS
President of Gay and Lesbian Alliance Against Defamation
The post-Proposition 8 landscape? Appeals of Judge Walker's decision will leave marriage equality in limbo for some time, but one outcome is certain: the Boies-Olson legal team gave a blueprint for winning in and outside of court by opting for a trial and using it as a platform for the stories of gay and lesbian couples.
The quintessentially American aspirations of these testifying couples -- their hopes for their own futures and for their children -- made the decision anything but radical. Indeed, how could it be anything but unconstitutional to deny hardworking people the right to take care of one another? The stories of these Californians coupled with hard data created an irrefutable record of invidious discrimination and its harms to the plaintiffs.
While not the first, it is perhaps the most high-profile court case challenging an anti-gay law, and stories like those shared in the trial have become a persuasive argument in legislative debates as in courtrooms. In Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and the District, sharing stories of love and commitment has been the most surefire way to secure marriage equality. And now it's working in courtrooms and shifting the general public's opinion, too.
Chairman of BGR Group; White House staffer to Ronald Reagan and George H.W. Bush
A judge overturning Proposition 8 in California is another political headache for the Democrats. Once again the left is using the courts to do what no elected state or federal legislature would do. In this case, a single judge is overturning the will of millions of California voters.
The left seems determined to force its ideals on the majority, even in the face of overwhelming public disapproval. Californians made their view clear; they believe marriage is between a man and a woman. If a legislature wants to vote otherwise or if a state referendum wants to define it differently, then so be it. But those rules don't give many Democrats the result that they are insisting upon. Therefore they seek mandates on the unwilling population by judicial fiat.
You can believe marriage is between a man and a woman yet still respect individual privacy rights. Believing marriage is between a man and a woman isn't anti-gay, and it isn't bigoted. The more the Democrats scream otherwise, the more they alienate themselves from the majority.
This is yet another distraction that adds to the political bull's-eye the left has painted on itself. Democrats haven't achieved solid economic growth. And changing the subject to health care, Charlie Rangel, so-called financial reform or gay marriage only makes their problems worse.