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Ninth Searches for Something (Anything) to Invalidate Proposition 8

Ninth Searches for Something (Anything) to Invalidate Proposition 8
By: Mario Diaz, Esq. - 12/8/2010

On Monday, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit heard oral arguments in California’s Proposition 8 case. It was the latest chapter in this judicial farce that has become a tragedy for our legal system and our freedom.

thshowcase.jpgJudging by the lighthearted tone of Monday’s proceedings, you would think the topic of discussion was what color the courthouse should be painted. But that should come as no surprise when you remember who is presiding over this matter.

Judge Stephen Reinhardt’s treatment of this case has been shameful from the beginning. He and everyone remotely familiar with this case knows that he should have recused himself, and perhaps that is one reason he treated the matter as a joke, since the mere fact that he is there is a joke.

Reinhardt is married to Ramona Ripston, who is the head of the Southern California office of the American Civil Liberties Union, an organization that has filed an amicus brief urging the court to uphold Proposition 8 as unconstitutional. She stands to benefit from the outcome of this case, and, yet, Judge Reinhardt strongly believes that there is no “appearance of impropriety.”

Why? Well, if you want to know the reasons he believes there would be no appearance of impropriety, you will have to wait. The issue apparently is not that important for Judge Reinhart, who dismissed the Appellant’s motion for him to disqualify himself by simply saying that he will not and promised to explain later. “I will be able to rule impartially on this appeal, and I will do so. The motion is therefore DENIED,” he declared blissfully, “for reasons that [he] shall provide in a memorandum to be filed in due course.”

“In due course” meaning “whenever he feels like it” (“ha, ha, ha”).

This is not fiction folks. This is the same case that just got out of proceedings at the District Court, where serious questions where brought after it was discovered that the district court judge was himself a homosexual (for more on that, read “The Prop 8 Case Charade“).

So the chicanery continues.

During oral arguments, the same gamesmanship continued. In between jokes, Judge Reinhardt seemed to be pushing over and over again a solution whereby the court could actually uphold the lower court’s decision declaring Proposition 8 unconstitutional without saying that it violates the federal Constitution.

He and his cohort, Judge Michael Hawkins (who might as well have been sitting with the proponents of homosexual “marriage”), kept probing the appellants with questions like, “Well, can California pass a state constitutional amendment allowing segregation?” This, of course, is just a juvenile question meant to keep the circus going but to contribute little, if anything at all, to what should be a very serious debate. The simple answer came back time and time again in so many words, “No, a state cannot pass a state constitutional amendment that violates the federal Constitution.”

And that is the question: Will the California State Constitution protecting the traditional definition of marriage violate the United States Constitution? But since they are not really sure the Supreme Court will rule with them, Judge Reinhardt seems reluctant to go that route and was adamant in suggesting that maybe they did not have to go that far.

It is hard to imagine what basis they would have to invalidate the proposition under California law if they are not willing to say it violates the federal Constitution, since this was an amendment to the state constitution. But you know, as we have seen, apparently no explanations are really needed when you have a declaration from the mighty Reinhardt.

“Unbelievable!” is right.

But that was not all: the “standing” song and dance routine was so deprived of common sense, it might be worthy of an Oscar. Apparently, even though the power in our form of government rests with “we the people,” the proponents of homosexual “marriage” believe it is a very anemic people indeed as, according to them, the governor and the attorney general by themselves can overturn a properly enacted state constitutional amendment simply by refusing to defend it.

Every single issue discussed in Monday’s oral arguments felt like a search for the best way to invalidate the proposition as narrowly as possible so as to create the least public outrage and scrutiny. It seemed no well-reasoned argument by the supporters of Proposition 8 would deter Judge Reinhardt and Judge Hawkins from this.

Sad to say, but we’ll just have to wait and see just how bad the decision will be. But it will be bad. The only thing they seemed unwilling to do is what the law requires them to do – enact the will of the people of California.

Listening to the arguments left you with the sense that “they’ll come up with something.” They’ll find a way to do the wrong thing.

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