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No standing: what marriage radicals really think of the people

Is it same-sex marriage rights they want, or a revolution in the American legal system? By Jennifer Roback Morse

of Prop 8 have standing to defend the measure in court seemed to go well for the defenders of natural marriage. But another issue lies beneath the surface of the court arguments. The issue is what kind of people are the marriage redefiners: Ted Olsen, Rob Reiner, and the American Foundation for Equal Rights? Is their bid to deny Prop 8 proponents legal standing just the next step in the unfolding of the civil rights movement, as they seem to perceive themselves? I think the evidence from the courtroom shows beyond doubt that we are dealing with something else entirely. These people are bent on obtaining a particular outcome, no matter what the cost to the rest of the legal system. Advocates of minimum government, especially libertarians, should be more than wary about hanging around this type of person: they should avoid them absolutely, and call them out wherever possible. Proposition 8 is the ballot initiative defining marriage as the union of one man and one women in the California Constitution. In 2008, California voters approved Prop 8, with 51 per cent of the vote, approximately the margin of victory that elected Obama. Since then, celebrity lawyers Ted Olsen and David Boies have brought a suit in the federal courts to argue that Proposition 8 violates the US Constitution.

Photo by Jennifer Roback Morse Last weeks hearing in the California Supreme Court on whether the proponents

Dr. Jennifer Roback Morse 663 S. Rancho Santa Fe Road Suite 222 San Marcos CA 92078 www.jennifer-roback-morse.com email: drj@jennifer-roback-morse.com 760/295-9278
2007 No part of this document may be reproduced or disseminated in any way without the expressed written consent of the Ruth Institute.

Please note the high stakes here. If the courts decide that the US Constitution requires the redefinition of marriage that will be the end of the line for debate on the subject in the US. We will have genderless marriage throughout the US, overturning the constitutions of the majority of states. So, the point at issue in last weeks hearing before the California Supreme Court was whether the proponents of Prop 8 (that is, the group of people who put Prop 8 on the ballot and who are legally responsible for it) have standing to defend the measure in court. Before I went to San Francisco to cover the Prop 8 trial, I hoped that the marriage redefiners would try to distinguish their case. That is, would they try to come up with some argument that distinguishes the proponents of Prop 8 from proponents of other potential ballot initiatives? If they make no attempt to do that, we might conclude that they dont care whether they destroy the initiative process. They just want what they want, and they dont care about collateral damage. I am sorry, but not surprised, to report that attorney Ted Olsen made no serious effort to create a legal argument that would apply to Prop 8 and not to other ballot measures. As I sat in the jam-packed courtroom, I sensed that the justices were appalled by his

cavalier attitude toward the voters. One by one, the justices poked holes in Olsens theory. Justice Carol Corrigan observed that Olsens theory would give the Attorney General the right to pocket veto any voter initiative. Justice Joyce Kennard noted that to agree with Olsen is to nullify the power of the people. Justice Kathryn Werdegar noted that we (meaning the Supreme Court of California) have always given ballot proponents standing in court. In addition, Chief Justice Tani CantilSakauye noted that this case was the first case in history in which the proponents were the sole defenders of a measure. In past cases, the proponents have stood shoulder to shoulder with the Attorney General. She asked what would happen to the states interest in a law, if the Attorney General refused to defend it. Does the states interest evaporate? Even the newest member of the California Supreme Court, the notoriously liberal advocate of marriage redefinition, Justice Goodwin Liu, balked at the breathtaking claims advanced by Ted Olsen. Doesnt it blinker reality, he asked, to assert that ballot proponents are no different from any other citizen who voted for Prop 8?

Dr. Jennifer Roback Morse 663 S. Rancho Santa Fe Road Suite 222 San Marcos CA 92078 www.jennifer-roback-morse.com email: drj@jennifer-roback-morse.com 760/295-9278
2007 No part of this document may be reproduced or disseminated in any way without the expressed written consent of the Ruth Institute.

But the ultimate challenge to Olsens theory came from Justice Ming Chin: Would you really have us hearing only one side of this case today? In effect, Olsens answer was, yes, he would have the court hearing only one side of the case: his own side. This exchange should be a wake-up call to everyone, especially for minimum government libertarians. The behavior of the marriage redefiners in this case illustrates that they are not just another group of citizens with a different opinion. These are people who want what they want without regard to the cost to our overall political and social system. These are not reformers: these are radicals. Consider this: Ted Olsen and company could have made all their arguments about the unconstitutionality of man-woman marriage without ever broaching the question of standing. They did not need to open this particular legal can of worms. Evidently, they are willing to have the court hear only one side of the case, as Justice Chin observed. Justice Chin was visibly appalled by the idea, but Olsen and friends appeared to have no problem with it. David Horowitz, Americas premier convert to conservatism from radicalism, offers trenchant observations about the radical mentality. In his wonderful little pamphlet,

Obamas rules for revolution, he quotes the famous radical strategist Saul Alinsky: Power comes out of the barrel of a gun is an absurd rallying cry when the other side has all the guns. Lenin was a pragmatist; when he returned to what was then Petrograd from exile, he said that the Bolsheviks stood for getting power through the ballot but would reconsider after they got the guns. Modern American progressives used to love the slogan power to the people when they thought they could control the people. Now that they are trying to shove something down the throats of the people, the progressives are ready to throw the people under the bus, along with the initiative process. Todays progressives are perfectly willing to gut the peoples power of initiative, just to give same sex couples the right to marry. Interestingly enough, very few such couples actually take advantage of this right in jurisdictions where it is permitted. This suggests that the freedom to marry isnt the only issue at stake here, and maybe isnt even the main issue. David Horowitz again: The issue is never the issue. The issue is always the revolution. It would take me too far afield to show in this one article why I am convinced that

Dr. Jennifer Roback Morse 663 S. Rancho Santa Fe Road Suite 222 San Marcos CA 92078 www.jennifer-roback-morse.com email: drj@jennifer-roback-morse.com 760/295-9278
2007 No part of this document may be reproduced or disseminated in any way without the expressed written consent of the Ruth Institute.

redefining marriage will amount to a massive transfer of power from civil society to the state. Suffice to say for now, that unmooring the concept of parenthood from biology and handing it over to the state, which the redefinition of marriage will surely do, moves parenthood from a natural pre-political reality to a completely artificial creation of the state. That is not my argument here. My argument here is that the marriage redefiners showed us their cards in the California Supreme Court last week. These are scorched earth people, take no prisoners people. Shame on us if we dont play our cards accordingly. Jennifer Roback Morse, Ph.D. is an economist and the Founder and President of the Ruth Institute, a nonprofit educational organization devoted to bringing hope and encouragement for lifelong married love. She is also the author of 77 Non-Religious Reasons to Support Man/Woman Marriage, Love and Economics: It Takes a Family to Raise a Village and Smart Sex: Finding Life-Long Love in a Hook-Up World. This article is published by Jennifer Roback Morse, and MercatorNet.com under a Creative Commons license. You may republish it or translate it free of charge with attribution for non-commercial purposes following these guidelines. If you teach at a university we ask that your department make a donation. Commercial

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Dr. Jennifer Roback Morse 663 S. Rancho Santa Fe Road Suite 222 San Marcos CA 92078 www.jennifer-roback-morse.com email: drj@jennifer-roback-morse.com 760/295-9278
2007 No part of this document may be reproduced or disseminated in any way without the expressed written consent of the Ruth Institute.