The latest ruling in the legal battle over California’s anti-gay marriage Proposition 8, like all other rulings and semi-rulings and arguments and positions in the battle, has poked up a hornet’s nest of cheers and complaints from supporters and opponents of gay marriage. Yet momentum in general seems to be turning fast against the anti-gay marriage forces and it is the same in the latest clash.
First Judge James Ware ruled against a motion brought by a group called Protect Marriage, which argued that Prop 8 presiding judge Vaughn Walker could not have fairly decided the case because he is gay and has been in a long-term relationship and might have wanted to get married. Ware said there’s no way to know that Walker wanted to get married and that, in effect, his personal life was not relevant.
In discussing the case, Fox News host Shepard Smith and Fox legal analyst Judge Andrew Napolitano agreed that the mostly religious organizations calling for Ware to void Walker’s ruling were out of bounds and laughably unsatisfiable.
Napolitano: If litigants dissatisfied with the ruling of a judge could inquire into the personal life and intimate thoughts and aspirations of the judge after the judge ruled against them, there would be no finality to anything. There has to be some demonstrable prejudice. They would have to show some material gain, like a financial gain, as a result of this before they could call into question the reasoning of the case…
Smith: Well, and if you adopt the reasoning of the appellants here, a heterosexual judge might be equally biased in a case concerning gay rights.
Napolitano: Who would satisfy them, other than somebody who would be predisposed to rule the way they wanted it to go?
Colorado Springs-based Focus on the Family political publication CitizenLink marshaled its own in-house legal analysts to make the case against Walker. The case made by CitizenLink would likely re-confirm the Fox analysts’ view of the gay marriage opposition as increasingly over-the-top.
“Had Walker recused himself — or ruled in favor of Prop 8 — he would have destroyed his prospect of being in a same-sex marriage,” writes CitizenLink Managing Editor Catherine Snow, as if there is no doubt any other judge would have ruled differently than Walker did when he ruled Proposition 8 barring gay marriage was unconstitutional.
For judicial analysis, Snow turns to CitizenLink’s own Bruce Hausknecht, who conjures a vision of Christians being fed to lions.
“Don’t forget that [anti-Prop 8 attorneys] Olson and Boies chose the 9th Circuit for a reason,” Hausknecht said. “Defending marriage in San Francisco is a lot like defending the Christians in early Rome. However, the genius of our three-tier federal court system is that this case will ultimately get to the Supreme Court, which doesn’t take kindly to the adventures in judicial activism commonly practiced in the 9th Circuit.”
In New York, it now looks like a gay marriage bill could well pass in the next day or two, despite intense pressure put on Republican lawmakers by religious organizations there.