On August 4, 2010, Judge Vaughn R. Walker ruled that California’s Proposition
8 which limited marriage to one man and one woman violated the Fourteenth
Amendment’s Due Process Clause and the Equal Protection Clause. The case is
called Perry v. Schwarzenegger.
    Judge Walker may have struck a fatal blow against the American family. It is
impossible to overstate how serious this ruling is. The vote of millions of
Americans in at least 27 states which voted to protect the institution of the family
may be undone by one homosexual judge.
    This ruling opens the way for Gays and Lesbians in the State of California to
marry unless a higher court intervenes to stop it. Judge Walker, who was appointed
to the federal bench by President George H. W. Bush in 1989, has been publically
identified in the media as a homosexual. Judge Walker is the first judge to rule that
same-sex couples have a right to marry under the Fourteenth Amendment. Prior
courts in other states that ruled in favor of same-sex marriage did so on the basis of
state law, not the U.S. Constitution.

The Facts of the Case

    There were two homosexual couples who brought the lawsuit against
Proposition 8. A Lesbian couple named Kristin Perry and Sandra Stier. They are
residents of Berkeley, California and raise four children. The other couple are two
Gay men, Jeffrey Zarrillo and Paul Katami who reside in Burbank, California.
Both couples applied for a marriage license from their respective counties but
were denied the license because of Proposition 8. Proposition 8 was passed to
amend the California State Constitution to read: “Only marriage between a man
and a woman is valid or recognized in California.”
    On November 5, 2008, the voters of California approved Proposition 8 with
52.4% in favor and 47.6% against. Approximately 7 million voters supported Prop.
8 and 6.4 million voted against it. Prior to Proposition 8, the voters passed
Proposition 22 in 2000 which had the same wording as Proposition 8. However,
Proposition 22 was declared unconstitutional by the California Supreme Court.
Thus, the need for Proposition 8. Proposition 22 was only a state statute while
Proposition 8 was part of the California State Constitution.

The Role of Judge Walker’s Homosexuality in the Case

    By any known legal standard, Judge Walker should have excused himself from
the case. The fact that he is a homosexual by definition means that he is personally
involved in the case in a most intimate way, his sexuality. He personally benefits
from the outcome of the case. It is not known who Judge Walker’s homosexual
lover is or if he has one. But if Judge Walker wanted to marry his homosexual
lover, Proposition 8 would have prevented him from doing that. Now that is no
longer true. Thus, it was impossible for Judge Walker to offer either party in the
case a fair trial.
    It remains to be seen if Judge Walker will try to benefit from his own ruling by
marrying his homosexual lover. Apparently, Judge Walker did not enter into a
same-sex marriage during the brief period when it was legal in California.
Approximately, 18,000 same-sex marriages were performed between the time

Prop. 22 was out and Prop. 8 was in. Those marriages are allowed to stand. No

doubt the homosexual community must be grateful that Judge Walker did not
marry at that time so that he could be available in the present case.
    Interestingly, Judge Walker is the Chief Judge in the Northern District of
California. It would be interesting to know how the case got assigned to him in the
first place?

The Case Against Proposition 8

    I am sad to say that the Plaintiffs’ lawyers opposing Proposition 8, that is the
bad guys, put on an excellent case. They put forward nine expert witnesses. Their
experts testified in the following professional fields: two historians, two
economists, three psychologists, one social epidemiologist and one political
scientist.
    Reading from page 28 of the 136 page opinion, Judge Walker characterized
their testimony this way: “Plaintiffs called nine expert witnesses. As the education
and experience of each expert show, plaintiffs’ experts were amply qualified to
offer opinion testimony on the subjects identified. Moreover, the experts’
demeanor and responsiveness showed their comfort with the subjects of their
expertise.”

The Case for Proposition 8

The Proponents’ lawyers supporting Proposition 8, the good guys, failed to put
on a case. Effectively, there is no case for our side in the legal record. None. If
somehow we win on appeal in a higher court, it will occur in spite of the record.
    Apparently, at one point Judge Walker wanted the case to be televised. When
this happened most of our expert witnesses chickened out and refused to testify in
court. The record indicates that four of our expert witnesses refused to come
forward. They were afraid for their safety. Allegedly, by the time Judge Walker’s
idea to televise the case was stopped, it was too late for our experts to show-up.
    Choosing good expert witnesses is the lawyer’s job. In a case like this, choosing
the best possible expert witnesses is the most important decision the lawyer makes.
Cases like these are really a battle between the experts. It is extremely important
that a lawyer thoroughly vent his experts, verify their academic credentials, and
know what they will say and not say on the stand. In effect, you need to know
everything your expert is going to say before he or she gets on the stand.
    Our lawyers failed in every respect in this case. Our lawyers had the job to find
out which experts are afraid and which are not. We needed experts who will testify
in court and defend their testimony out of court if necessary in the mass media. We
needed experts who have the guts to defend their professional findings concerning
homosexuality before the public. If an expert might be afraid for his personal
safety, it is the lawyer’s job to find out ahead of time and find someone else.
    However, this is not the worst of it. We ended up with only two witnesses to
appear for our side- David Blankenhorn and Kenneth R. Miller. David
Blankenhorn appears to be the primary witness for our side. David Blankenhorn
received a B.A. from Harvard University and a M.A. in comparative social history
from the University of Warwick in England. The record indicates that he is the
author of two books, Fatherless America and The Future of Marriage.
Blankenhorn was called as an expert witness on marriage, fatherhood and family
structure.
    However, it is not clear why our lawyers called this man to be an expert witness
for our side. To be sure, David Blankenhorn opposes same-sex marriage—sort of.
Judge Walker for obvious reasons quoted this statement by Blankenhorn in his
decision. From page 48 of the decision:
    “Blankenhorn also testified he wrote and agrees with the statement ‘I believe
that today the principle of equal human dignity must apply to gay and lesbian
persons. In that sense, insofar as we are a nation founded on this principle, we
would be more American on the day we permitted same-sex marriage than we were
the day before.”
    From this quote, I think you can get a sense of how bad a job our lawyers did in
this case. By the way, two of our expert witnesses that chickened out-- the lawyers
for the bad guys entered their evidence into the record for their side! This was
Katherine Young and Paul Nathanson. From page 36 of the record, Judge Walker
said: “Plaintiffs entered into evidence the deposition testimony of two of
proponents’ withdrawn witnesses, as their testimony supported plaintiffs’ claims.”
This is too much.
    Judge Walker ultimately ruled that David Blankenhorn was not qualified to be
an expert witness and that the testimony of Kenneth Miller was of little value. It
would appear that Miller, a Professor of Government at the Claremont McKenna
College testified about the political power of Gays and Lesbians in California.
    Finally, Judge Walker pointed out that not one of the official proponents of
Proposition 8 appeared in court to defend it [One official proponent for
Proposition 8 did appear as a witness but for the opposing side! Hak-Shing
William Tam appeared as an adverse witness.] In contrast, all four of the
homosexuals appeared in court and testified that they wanted to get married.

Judge Walker Blames the Christians for Harm to Homosexuals

    In one of the most vicious attacks against the Christian religion by any federal
judge in American history, Judge Walker believes he knows who is responsible for
the present plight of Gays and Lesbians in America–you and me.
    Under the heading FINDINGS OF FACT, Judge Walker concluded that based
on all the evidence presented at trial that the Christian religion is harmful to
homosexuals. The Finding of Facts are the legal conclusions a judge makes in a
case and forms the legal basis for any relief granted to one or both parties.
    In Findings of Fact No. 77 on page 101 of his decision, Judge Walker states the
following:
    “Religious beliefs that gay and lesbian relationships are sinful or inferior to
heterosexual relationships harm gays and lesbians.”
    Judge Walker cited 18 pieces of evidence to support his legal conclusion that
the Christian religion is harmful to Gays and Lesbians.
    The first two on the list are our own two expert witnesses who chickened out--
Paul Nathanson and Katherine Young. As you recall, these are the experts the bad
guys flipped to support their side of the case. For example, Judge Walker cited
from Paul Nathanson’s deposition the following: “Religions teach that homosexual
relations are a sin and that contributes to gay bashing . . . ”
    Judge Walker then proceeded to blame the following groups that cause harm to
Gays and Lesbians: “the church,” “Many clergy in churches . . . led campaigns
against gay rights,” “people who attended church weekly,” the Congregation for
the Doctrine of Faith, Catholics for the Common Good, the Southern Baptist
Convention, the Evangelical Presbyterian Church, the Free Methodist Church, the
Lutheran Church-Missouri Synod and the Orthodox Church of America.
    Curiously, Judge Walker did not name the Orthodox Jewish Community, the
Muslim Community or any other religious community. Just the Christian
Community.
    In my opinion, there can be no question that Judge Walker feels a deep sense of
anger towards the Christian religion. This anger is rooted in his own
homosexuality. It is possible that after many years of being denied marriage to his
own homosexual lover, Walker saw that he had a chance to do something about it
and he did.
    This case was a complete travesty of American justice. The case should be
vacated and a new trial should be ordered. The voters in California are entitled to a
judge who will not put his sexual orientation ahead of his oath to the Constitution
of the United States.
    My dear friends, let us pray to our Blessed Lord and Savior Jesus Christ that
this decision will be over-turned.

David W. New is an attorney in the Washington, D.C. area and the author of
several books concerning the Constitution including The Constitution for
Beginners offered on Amazon.com. His email address is:
david_new@juno.com