NOM BLOG

Ed Whelan on the Lawless Project of SSM

 

Legal scholar Ed Whalen in NRO's Bench Memos:

Who has better displayed fidelity to the ideals of our constitutional republic, the supporters of traditional marriage (formerly known simply as marriage) or the proponents of same-sex marriage? Consider the histories of DOMA and Prop 8.

...The battle for marriage in California displays a similar pattern. In 2000, California voters adopt Proposition 22 to affirm that marriage in California remains what it has always been—the union of a man and a woman. In May 2008, the state supreme court, in a novel opinion and by a 4-3 vote, strikes down Proposition 22 as supposedly violative of the state constitution. Marriage supporters respond with Prop 8, which the voters of California adopt in November 2008. Intense and vicious bullying of supporters of Prop 8 ensues.

Proponents of same-sex marriage then run to their favorite federal courthouse to challenge Prop 8 on federal constitutional grounds. They draw as the judge in the case Vaughn Walker, who proceeds to engage in what is probably the most egregious course of misconduct ever by a federal district judge (and who discloses only after his retirement from the bench that he is in a long-term same-sex relationship and thus was ruling on his own right to marry his same-sex partner).

...As reprehensible is the unprecedented refusal of California officials to defend Prop 8—a refusal that ultimately leads five members of the Supreme Court (including Kagan, the decisive vote once again) to rule that the Court has no jurisdiction over the case.

Now I of course understand that those who somehow believe that there is a never-before-recognized constitutional right to same-sex marriage will perceive supporters of marriage to be the unjust aggressors in these episodes. But I would hope that even they would acknowledge that supporters of marriage have pursued their objectives democratically and peacefully and, adhering to established constitutional principles (rather than imagined new ones), have ample cause to feel terribly cheated.