The case will be a show trial in a kangaroo court. I don't say that lightly of any federal judge, but Judge Walker's extraordinary bias has already been flagrantly on display.
Take the trial itself. The constitutionality of Proposition 8 is not really a matter for a trial of fact. It's a question of law. But Judge Walker ordered one anyway. Why? Ordinarily a trial judge's rulings of fact cannot be questioned by higher courts. So the more of his opinions that Judge Walker can stuff into the box of "trial of fact" instead of "review of law," the more power he will have over this historic case.
Next Judge Walker issued an extraordinary ruling that the private intentions of Prop. 8 proponents -- ideas by definition never communicated to voters -- were properly the subject of this trial. So people who worked on the campaign have been put on trial, subpoenaed for all their e-mails and personal correspondence. This is an enormous personal headache, one which will (as intended) discourage participation in the political process in the future.
The people who enacted Prop. 8 were not the campaign manager or executive committee of Protect Marriage, but the 7 million voters who passed it after a free and fair election. The constitutionality of a law passed by voters has never been held to depend on private communications of the campaign committee.
But Judge Walker actually thought he could order the Prop. 8 campaign to turn over private campaign strategy memos. (Even the liberal 9th U.S. Circuit Court of Appeals could not swallow that ruling and overturned it.)
"These are kangaroo-court procedures," distinguished lawyer Ed Whelan noted in National Review Online's Bench Memos this week.
But the third outrageous ruling by Judge Walker is the worst of all: On Dec. 22, he ordered the trial televised -- in defiance of federal rules -- without proper notice and public comment. Informed of his error, Judge Walker responded by hastily posting a notice New Year's Eve, thus allowing comments for only five business days, more or less signaling his determination to put this trial on TV. Why?
Whelan points out that the Judicial Conference of the United States opposes televising federal trials in part because doing so "could jeopardize ... the safety of trial participants" and "produce intimidating effects on litigants, witnesses and jurors."
Maggie Gallagher is a nationally syndicated columnist, a leading voice in the new marriage movement and co-author of The Case for Marriage: Why Married People Are Happier, Healthier, and Better Off Financially.
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