California Voters Face Show Trial in Kangaroo Court

Maggie Gallagher

1/6/2010 9:41:05 AM - Maggie Gallagher
On Monday, Jan. 11, U.S. District Judge Vaughn Walker will put the people of California on trial for voting against gay marriage.

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."

But this is no ordinary trial. This is a trial in a case where thousands of ordinary citizens have already faced a wave of hatred for participating in democracy. On Oct. 22, the Heritage Foundation released a report titled "The Price of Prop. 8," which concluded that "supporters of Proposition 8 in California have been subjected to harassment, intimidation, vandalism, racial scapegoating, blacklisting, loss of employment, economic hardships, angry protests, violence, at least one death threat, and gross expressions of anti-religious bigotry." (Read it at www.heritage.org.)

To deliberately and needlessly expose these people to a new wave of publicity and attacks by televising the trial is outrageous.

Full disclosure: As the president of the National Organization for Marriage, which created a ballot initiative committee -- NOM California -- that worked with Protect Marriage, I was intimately involved in putting Prop. 8 on the ballot. So I know dozens of people who have been personally threatened, some of whom still live in fear today when they walk outside their door as a result of an organized effort to distribute personal addresses of donors to Prop. 8. NOM is involved in a separate federal lawsuit to protect donors' constitutional rights in future marriage amendment battles.

At stake in this case is not only the future of marriage in all 50 states, but the future of democracy, the future of fair play, ordinary decency and common sense. Not to mention a little thing like constitutional limits on the power of judges.

After Prop. 8, gay couples continue to enjoy unmolested all the legal civil rights of marriage under California law through civil unions. Who will stand up for the core civil rights of the people of California and the rest of the USA to participate in democracy without fear?

Certainly not Judge Vaughn Walker.