While judges and politicians struggle to give Californians gay marriage “whether they like it or not,” Americans are overwhelmingly not in favor of it. In the latest poll from Public Policy Polling conducted Aug. 6-9, Americans opposed gay marriage almost 2-to-1 — 57 percent opposed, 33 percent in favor.
Ed Whelan made one of the most trenchant points I’ve seen anyone make about the significance of the Ninth Circuit’s decision to stay Walker’s ruling:
“Walker’s reversals also call into question the judgment of the supposed dream team of plaintiffs’ lawyers, Ted Olson and David Boies,” writes Whelan over at Bench Memos. “…[D]espite their massive advantage in resources, Olson and Boies have lost to Cooper and his team on every issue that has been decided by any court other than Walker’s.”
And just who is Ed Whelan, you may be wondering? He’s the president of the Ethics and Public Policy Center and a very distinguished legal mind. He graduated summa cum laude from Harvard Law school in 1985 (serving as an editor of the prestigious Harvard Law Review), clerked for Supreme Court Justice Antonin Scalia, and spent three years in the Justice Department as Principal Assistant Attorney General for the Office of Legal Counsel.
He’s one smart legal eagle, in other words. So when Ed Whelan says Judge Walker’s bizarre ruling will backfire, I sit up and take notice: In fact, he writes the stay “provides yet further compelling evidence that Walker has gone utterly bonkers in his egregious mishandling of this case.” He goes on:
“This is the third time that a reviewing court has smacked down Walker in this case. The first time was an extraordinary writ of mandamus that a Ninth Circuit panel consisting entirely of Clinton appointees issued last year against the incredibly intrusive discovery, grossly underprotective of First Amendment associational rights, that Walker authorized into the internal campaign communications of the Prop 8 sponsors. The second time was the Supreme
Court’s extraordinary (and fully warranted) stay order blocking Walker’s unlawful effort to broadcast his show trial.”To any objective observer, Walker has discredited himself by his manifest bias. However the reviewing courts ultimately decide this case, I think it’s highly unlikely that Walker’s wild legal analysis or his crazed purported findings will advance his cause–and far more likely that they will do the opposite,” concludes Whelan.
The alleged dream team of lawyers gunning for Prop 8 are now hoping for a technical knockout–for the Ninth Circuit to rule that the voters of California have no standing to challenge Walker’s ruling.
So for weeks Ted Olson goes on TV crowing that he has proved at trial there’s no possible case for opposing gay marriage. Now he’s in court trying on technical grounds to block any higher court from even reviewing his handiwork?
Does that sound like the behavior of people with an airtight case to you?
In a less-publicized ruling this week, the Ninth Circuit also agreed to hear an appeal from Imperial County to be permitted to intervene in this case on behalf of Prop 8. One of Judge Walker’s trickier moves was to deny Imperial County’s previous request to join this case–while admitting San Francisco as a party. Kudos to the supervisors of Imperial County for standing up for the voters!
If Imperial County is admitted it should help resolve any lingering doubts about the “standing” issue. But in any case, the case is likely to be heading to the Supreme Court.