‐ Robert Gibbs complained about “the professional Left.” These days the White House is looking more and more like the amateur Left.
‐ President Obama says that the job of plugging BP’s Gulf oil well is “just about over,” and the latest report from the administration claims that most of the oil not captured or washed ashore is gone or diluted. Obama and his lower-downs have an obvious interest in saying so. They may also be right. Ocean microbes (especially prevalent in the warm Gulf) claim a lot of the oil from spills. Some of the most volatile chemicals evaporate. Much of the rest is breaking down into simpler molecules. The estimates come with a load of caveats: They are estimates, based on models and extrapolations; oil dispersed in deep water may not break down as quickly as surface oil; even the rosiest scenario leaves a malignant residue of 53 million gallons that has or could come ashore — five times the Exxon Valdez spill. The Gulf oil spill was a disaster. But the media, with its yen for more and worse, may have made it seem even greater than it was. So it truly was Obama’s Katrina.
‐ On consecutive days, a district-court judge in Virginia allowed a constitutional challenge to Obamacare’s individual mandate to proceed, and 71 percent of Missouri voters approved a referendum banning the mandate’s enforcement. These two events may have little immediate consequence: Missouri cannot nullify a federal law, and the Virginia judge merely declined to dismiss the case (though his statement made clear that it is anything but a frivolous exercise; never before has the federal government forced Americans to buy something). Constitutional issues aside, the mandate is a bad idea; it will be especially burdensome to the low- and moderate-wage households Democrats claim to be helping, since they will have to accept one-size-fits-all coverage that is more costly than what many of them are signed up for today. While there are many things wrong with Obamacare, opponents are right to focus their initial attacks on the individual mandate, since if it is nullified, by either a court ruling or a political uprising, the rest of the edifice will become increasingly shaky — increasing Republicans’ chances of knocking it down after the November elections.
‐ Responding to questions about Obamacare’s constitutionality at a town-hall meeting, Rep. Pete Stark (D., Calif.) casually replied: “I think that there are very few constitutional limits that would prevent the federal government from rules that could affect your private life. . . . The federal government, yes, can do most anything in this country.” This sweeping assertion brings to mind Madison’s words from Federalist 45: “We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New . . . ?”
‐ No one can fault Judge Susan Bolton for a lack of imagination. She found that the Arizona immigration law is presumptively unconstitutional because the state might make too many calls to the federal database that is supposed to, as a matter of law, apprise states and localities of the legal status of suspect individuals. (Never mind that in the unlikely event Arizona overwhelms the system, the feds could just add a position or two to the 153-person staff.) The law might delay the release of an arrested legal immigrant while his status is being checked. (Never mind that law enforcement routinely runs all sorts of checks on arrestees, looking for everything from child-support orders to outstanding warrants.) It might detain legal immigrants from visa-waiver countries who lack proper documentation through no fault of their own. (Never mind that a visitor from such a country has the duration of his stay stamped into his passport.) The decision was a tissue of fanciful excuses for validating the Obama administration’s refusal to enforce the federal immigration laws. Arizona’s offense is not being in on the joke.
Where Outfidels Are In
Greg Gutfeld — editor, writer, blogger, TV host, provocateur, showman, weasel wrangler, outlaw (thrice convicted of aggravated mopery), future NR Cruise speaker, and now small businessman — has come up with a brilliant idea: open a gay bar.
Oh, not just any gay bar, but a Muslim-themed gay bar catering to outfidels — if you know what I mean — across the street from the Cordoba House, the infamous “Ground Zero mosque” to be built near the scandalously still-empty hole where the World Trade Center once stood. Here’s Gutfeld:
I wanna take you to a gay bar,
I wanna take you to a gay bar,
I wanna take you to a gay bar, gay bar, gay bar.
Let’s start a war, start a nuclear war,
At the gay bar, gay bar, gay bar.
Wow! (Shout out loud)
At the gay bar.
Oh, whoops. Those are the opening lyrics to “Gay Bar,” by the band Electric Six.
Here’s Gutfeld, explaining his aim to “open the first gay bar that caters not only to the West, but also Islamic gay men. . . . This is not a joke. I’ve already spoken to a number of investors, who have pledged their support in this bipartisan bid for understanding and tolerance.”
“As you know,” Gutfeld continues, “the Muslim faith doesn’t look kindly upon homosexuality, which is why I’m building this bar. It is an effort to break down barriers and reduce deadly homophobia in the Islamic world.”
One floor will serve non-alcoholic drinks and it will operate round the clock, for those who still live in a burqa of shame and need to come in off hours (closing time: inshallah).
Now when it comes to social conservatism I’m no John Ashcroft, but I’m not exactly Perez Hilton either. In other words, I don’t normally celebrate gay disco openings or closings.
But I like the idea for three reasons. First, it’s funny (and funny is good). Second, it turns things back on the supposed Islamic champions of tolerance who are building the mosque. Among politicized Islamic leaders, tolerance is something they’re great at demanding and not so great at demonstrating. The Saudi royal family spends billions (that’s a guess) on exporting Islam around the globe and immediately declares opposition to its efforts to be a form of “Islamophobia” or general bigotry. But try to even talk about Christianity in Saudi Arabia and you’ll find yourself in jail — if you’re lucky. We need not belabor the point by noting at any length that the Islamic world is less than wholly receptive to synagogue construction.
Last, I admire tough-minded libertarianism. Too often, libertarianism — or, as it’s called in lower Manhattan, “social liberalism” — is really a pathetic ideological mask, used by people who want to hide their fear of offending anyone. It can also be an expression of civilizational low self-esteem — “Who are we to judge?” and all that nonsense. It can also be a cop-out to avoid critical thinking or an insidious means of undermining cultural institutions. In short it’s not always bad, but it often can be.
Tough-minded libertarians understand that freedom isn’t merely — or even necessarily — a secular-governmental product, but rather a cultural institution that needs to be defended, even if that means offending people. Whatever you may think of gay bars, they’re not going away in the freedom-loving West. Pretty much everybody else in American life has learned how to live-and-let-live with such places, to one extent or another. If the folks behind Cordoba House really want to build bridges with the West, they’ll have to learn to do likewise, particularly on Fatwah Tuesdays, when the first 72 virgins drink for free.
#page#‐ An internal memo leaked from U.S. Citizenship and Immigration Services revealed that the agency was considering ways to enact “meaningful immigration reform absent legislative action.” The memo proposed, for example, granting “deferred action” — that is, an exemption from prosecution — to the tens of thousands of illegal-immigrant high-school graduates who would qualify for citizenship under the DREAM Act (which, by the way, has failed in Congress several times). Meanwhile, the national union council that represents the 7,000 employees of the Office of Enforcement and Removal Operations released a letter declaring a unanimous “vote of no confidence” in the leadership of its parent agency, Immigration and Customs Enforcement. “Director John Morton and Assistant Director Phyllis Coven have abandoned the Agency’s core mission of enforcing United States Immigration Laws and providing for public safety, and have instead directed their attention to campaigning for programs and policies related to amnesty and the creation of a special detention system for foreign nationals that exceeds the care and services provided to most United States citizens similarly incarcerated,” the council wrote. Amnesty is doubly lawless when it is implemented before being passed.
‐ Sen. Lindsey Graham (R., S.C.) stirred up an immigration debate already roiling nicely, thanks to Arizona, with a proposal to amend the 14th Amendment, section 1 of which declares: “All persons born or naturalized in the United States . . . are citizens of the United States.” The 14th Amendment, ratified in 1868, aimed to prevent the disfranchisement of freed slaves; subsequent court rulings held that it applies to the children of immigrants, whether legal or not. Defending his proposed reform, Graham told NRO’s Daniel Foster, “We’re not going to continue to have incentives for people to break the law.” Yet we followed the policy of birthright citizenship all the years we had no immigration problem. Clearly it is not the main cause of our current woes. Slack law enforcement and unwise amnesties — the sort of policies favored by such as Lindsey Graham — have caused the problem. Graham indeed envisions his amendment as an add-on to an amnesty deal for the 12 to 14 million illegals already here. Since amendments require the approval of two-thirds of Congress and of three-quarters of the states, it is an add-on that will never be added on — boob bait for bubbas. No sale, Senator Graham.
‐ In 1856, Rep. Preston Brooks of South Carolina attacked Sen. Charles Sumner of Massachusetts on the floor of the Senate with a cane and beat him to unconsciousness. In 2010, Sen. Al Franken of Minnesota, the presiding officer, snorted and mugged through a speech by Sen. Mitch McConnell of Kentucky on Supreme Court nominee Elena Kagan. “This is not Saturday Night Live, Al,” said an angry McConnell. Later Franken sent McConnell a written apology, which was accepted. You know what they say on the set of SNL — the first time as tragedy, the second time as snorting and mugging.
‐ Congressman Mike McMahon is a New York City Democrat who represents all of Staten Island and parts of Brooklyn. A couple of Republicans are competing for the honor of running against him this year — and one of them is Michael Grimm. Grimm has raised a fair amount of money, which has the McMahon campaign concerned. It compiled a list headed — get this — “Grimm Jewish Money Q2.” (The last bit refers to the second quarter of fundraising.) On the list are more than 80 donors whom the McMahon campaign identifies as Jewish. How do they know? Do the donors wear yellow stars? The spokesman for the McMahon campaign, Jennifer Nelson, explained that McMahon’s finance director is Jewish and “knows a lot of people in that community.” Nelson released “Grimm Jewish Money Q2” to the press. She commented, “Where is Grimm’s money coming from? There is a lot of Jewish money, a lot of money from people in Florida and Manhattan, retirees.” The McMahon campaign, embarrassed, fired Nelson for this comment, and for her release of the list. Since when is “Jewish money” odd or sinful in New York City politics?
#page#‐ We’d like to congratulate Rep. Paul Ryan (R., Wis.) for getting so completely under the skin of Princeton professor Paul Krugman, who recently used his New York Times column to call Ryan a “charlatan” and his deficit-reduction plan a “fraud” that had been “drenched in flimflam sauce.” Krugman did not present any new criticisms of Ryan’s plan; he merely repeated the claim that, according to one group of experts, the tax side of it wouldn’t raise enough revenue to eliminate the deficit. Ryan simply responded that experts oftentimes disagree when estimating the effects of policy changes far into the future, and that he would be amenable to tweaking his tax plan to keep revenues at their historical average as a percentage of GDP — this would be sufficient to balance the budget under his plan. Krugman’s real problem with Ryan’s plan, of course, is that he thinks Americans have historically paid too little in taxes, and the budget should be balanced through tax hikes rather than spending cuts. Many of us have made the opposite case, but few have done it so effectively as to elicit such a hilariously self-defeating response from such an influential proponent of higher taxes.
‐ It has been a long climb-down for the Democrats on the issue of new energy legislation. Last year, House Speaker Nancy Pelosi was able to twist enough arms to get the House to pass most of what the Democrats wanted: caps on carbon emissions, renewable-energy mandates for utility companies, and a grab-bag of subsidies for electric cars and solar-powered houses — the works. But when the bill got to the Senate, Majority Leader Harry Reid discovered that it was too much of a job-killer for the moderate wing of his caucus to stomach: Gradually he gave up the carbon caps and the renewable-energy mandates until all he had left was the grab-bag of spending, and rising deficit concerns meant even that was no sure thing. For a moment it looked as though the oil spill would give the Democrats the momentum they needed to pass an energy bill, but once again they overplayed their hand, by including provisions that would have killed jobs in Louisiana (Landrieu, D.) and Alaska (Begich, D.). Chances that the Democrats will pass a bill before November are dimming, but the economy will not be safe until they have been completely extinguished.
‐ Fannie Mae and the Committee to Re-Inflate the Real Estate Bubble continue their assault on the American economy and on good sense: In the aftermath of a financial crisis caused by the default of marginal mortgages, Fannie Mae, the Federal Housing Administration, and state housing agencies have teamed up to revive the nothing-down mortgage. Fannie has agreed to buy mortgages from homebuyers who cannot even put together the minuscule 3.5 percent down payment required of most borrowers. Anybody who can scrape together a thousand bucks and pass the credit check can now get a government-backed mortgage. Worse, these borrowers will not even be required to purchase mortgage insurance, and they will automatically be enrolled for additional mortgage subsidies should they become unemployed. The default rate for FHA-backed mortgages is already 14 percent. If housing prices should decline, even by less than 1 percent, practically all of these $1,000-down buyers will be underwater, and therefore likely to default. Fannie Mae’s twin brother, Freddie Mac, just went begging to Congress for another $1.8 billion in bailout money, arguing that it needs this — because housing prices are going to fall. Fannie, meet Freddie.
#page#‐ John Maynard Keynes famously wrote that any sort of spending — even paying people to dig holes in the ground — “will increase . . . the real national dividend of useful goods and services.” But could he have imagined that giving coke to monkeys, tracing the historic roots of dog domestication, or sending scientists to the Indian Ocean to collect ants would be considered good ways to stimulate America’s economy? All these and more are on a long list of questionable projects that were funded by last year’s $862 billion stimulus bill, and all have ostensibly beneficial purposes: The first study, for example, is meant to find out how cocaine affects monkeys’ behavior (though since they already spend all their time chattering excitedly, it’s not clear how anyone can tell). Unfortunately, official estimates say the cocaine project created less than one-half of a job, and the vaunted multiplier effect must be small, as the monkeys are unlikely to buy anything with their grant money except more cocaine. To be sure, it is easy to make scholarly research sound silly, and studying coke-snorting monkeys may be scientifically valuable. But only Barack Obama, and possibly J. M. Keynes, would suggest that it stimulates the economy.
‐ President Obama went to Michigan to drive a Chevy Volt, General Motors’ new hybrid car. At $41,000, the Volt costs too much. Washington will make it more attractive by offering a $7,500 rebate. But that subsidy shifts the cost to the taxpayer, who is already in for the substantial amount that General Motors, courtesy of Uncle Sam, paid to develop the Volt. Since the market, such as it is, for pricey green cars tends to be upper-middle-class types, the commoners are being made to help their betters. And there are already hybrid and all-electric cars out there: the Toyota Prius, the Nissan Leaf. So the other beneficiary of the Volt is the United Auto Workers, for which General Motors acts as a front man. Politicians can make things the public doesn’t want forever, if they have infinite resources and infinite patience. But the deficit numbers already tell us that resources are limited, and the polls suggest that voters, if not politicians, may soon have a patience shortage.
‐ Rep. Maxine Waters (D., Calif.) is the latest House Democrat to face ethics charges. The ethics charges against Charlie Rangel, combined with the fact that both Rangel and Waters are black, have led some members of the Congressional Black Caucus to complain that this is about race. In Waters’s case, it is, but not in the way the CBC is insinuating. Waters is charged with improperly using her office to benefit OneUnited, a minority-owned bank — “improperly” because one of the minorities who owned OneUnited was Waters’s husband, and he held over $150,000 worth of stock in the bank when Waters intervened to arrange a meeting between its president and the Treasury officials charged with overseeing the federal bailout of the banking system. OneUnited received a $12 million allocation from the Troubled Asset Relief Program, despite being a poor candidate for a bailout: The bank has so far missed all but one of its scheduled dividend payments. Waters’s excuse, then, is that she is not a crook, but was merely wasting taxpayer money on an expensive boondoggle.
#page#‐ President Obama has prescribed a surge for Afghanistan. Like the surge in Iraq, this surge requires the trust and help of the local population, who will be killed by extremists if their support of the Coalition becomes known. Hugely complicating, if not defeating, our effort has been the release of tens of thousands of classified documents by a group called WikiLeaks: a group of people who fancy themselves righteous whistleblowers. WikiLeaks founder Julian Assange has said that his goal is to “end the war in Afghanistan.” The released documents include the names and locations of many Afghans who have aided the Coalition. The Taliban is studying these documents closely, vowing death to informants. As a Taliban spokesman said, “America is not a good protector of spies.” There is now “a panic among many Afghans,” in the words of one report. WikiLeaks has done grave damage to the American interest, and grave damage to the Afghan people. The person or persons who gave the classified material to WikiLeaks, of course, have done the same. Whether or not WikiLeaks is beyond our legal reach, the leakers presumably are not. The U.S. government should find them and throw the heaviest possible book at them.
‐ Al-Qaeda has a new chief of operations, according to the FBI, and he knows the U.S. very well. Adnan Shukrijumah, now 35 years old, came here as a child from his native Saudi Arabia. He lived in Brooklyn, where his father was imam of a mosque. Then the family moved to Florida, where Shukrijumah took some college courses, and where his mother still lives. Shukrijumah left the U.S. early in 2001 and was tagged by the FBI as a threat in 2003. Now thought to be in the Afghanistan–Pakistan border badlands, Shukrijumah has been decisively identified from old videos and photographs by would-be New York subway bomber Najibullah Zazi, who had met him at a training camp, and by 9/11 mastermind Khalid Sheikh Mohammed, his former boss. Shukrijumah’s promotion comes with some risks to his health. Until recently he shared operational planning duties with two colleagues, but both fell victim to U.S. drone attacks. Let’s hope for a trifecta.
‐ The Taliban ambushed a team of aid workers hiking into the roadless Parun Valley in northern Afghanistan. Seven men and three women were murdered; two were doctors. Among the dead: Tom Little, a 61-year-old American optometrist who had lived in Afghanistan for 35 years and raised three daughters there; Dr. Karen Woo, a 36-year-old British surgeon, engaged to be married. They had planned to treat cataracts, and conduct dental clinics. A Taliban spokesman said they had maps and a Bible, and thus were spies and infidels. The Taliban are liars, as well as cowards and murderers: The dead worked for the International Assistance Mission, a Christian aid mission that has been in the country for decades and does not proselytize. “Is it time to quit now?” said Dirk Frans, the group’s director, meaning, No. Blessed are the merciful, for they shall obtain mercy. And the Taliban’s scripture? There is no God but Allah, and he says you don’t need eyes or teeth.
‐ News Corp., Rupert Murdoch’s worldwide media empire, is scaling back its operations in China for much the same reason that Google starting having second thoughts about the Middle Kingdom: too much state interference. It is selling a controlling interest in its television businesses to China Media Capital, an investment fund run by the Chinese government. Murdoch apparently has concluded that if Beijing is going to act like a senior partner, he may as well make it one.
#page#‐ Hip-hop singer Wyclef Jean is running for president of Haiti, and has filed election papers. Haiti is Jean’s native land, though he has lived in the U.S. since childhood. Since 2005, he has been principal of a charitable foundation helping Haitians, but the foundation has paid him large sums of money and been sloppy about tax filings. Jean’s personal finances are also in disarray: He owes the IRS more than $2 million, according to federal tax-lien documents. According to a PBS report on the upcoming election, “The winner will oversee spending of billions of dollars in international aid pouring into the country.” Whether Mr. Jean is the right person for such a post must be left to the judgment of Haitian voters, but surely some measure of cynicism is justified. Leftist movie actor Sean Penn, who has been busy in Haitian earthquake relief, has declared himself “suspicious” of Jean’s presidential bid, and mocked the “vulgar entourage of vehicles” of the candidate’s first campaign tour. As if the wretched Haitians didn’t have enough to cope with, now they must endure dueling celebrity egos.
‐ The Washington Post Company has unloaded the disintegrating Newsweek on Sidney Harman, an entrepreneur and philanthropist, for $1. Newsweek is a money-hemorrhaging mess that has lost more than half of its readers in recent years. It may be that the philanthropist in Mr. Harman bought Newsweek, but the entrepreneur in him must know that he paid too much.
‐ In Indianapolis, police sergeant Matthew Grimes was asked to give a presentation to a church audience. The pastor had something up his sleeve: He would stage a fight between two black men, to see how this white officer would respond. The fight was staged: Grimes intervened, was thrown to the ground, and drew his Taser gun. At that point, people said, essentially, “Just kidding!” Grimes was injured during this stunt, and was treated for back spasms at a hospital. We hope everyone is happy. By the way, how do you test whether a pastor has an ounce of sense in his head?
‐ Time was, an American kid could get a first lesson in capitalist enterprise by running a lemonade stand. A child may, of course, still open a stand, but the lesson learned today will more likely concern the moon-booted arrogance of regulation-crazed petty government officials. So it transpired for seven-year-old Julie Murphy in Portland, Ore., who set up her stand at a local art fair. County health inspectors asked to see her restaurant license. When the lass could not produce one, they threatened her with a $500 fine. Confronted by a reporter, the state’s Food-Borne Illness Prevention Program Manager extruded the following: “When you go to a public event and set up shop, you’re suddenly engaging in commerce. The fact that you’re small-scale I don’t think is relevant.” Was the FBIPPM ever a child? Or did he escape fully formed from one of the more depressing novels of Charles Dickens?
‐ The 20th century was not kind to Thomas Molnar. Born in Budapest, he was educated in a Hungarian town that had been stripped from Hungary by the post–World War I settlement. As a college student in Belgium he was interned by the Nazis in Dachau (his crime: Catholic student activism). As the Forties ended, he saw his native country go Communist. Then, 40 years of exile. Molnar anatomized the intellectual in the modern era, ever driven by the quest for novelty to undermine his own accomplishments; he taught; he wrote for National Review. In person he could be charming, but the sadness of displacement always clung to him. The fall of Communism allowed him to go home, to honors and last professorships. Dead on the eve of his 89th birthday. R.I.P.
‐ John Callahan severed his spine in a drunken car accident at the age of 21. A stubborn alcoholic, he did not go to AA for six more years. Then, in his wheelchair, he became a cartoonist, guiding a pen wedged into his right hand with the shoulder motions of his left arm. He blasphemed the religious upbringing of his youth, but the blasphemies that stung were aimed at the faux pieties of niceness. They were false counselors, and he was Job. “Please help me,” says the Callahan bum’s sign, “I am blind and black, but not musical.” His warmest fans were cripples and the ill. Dead at 59, from complications of quadriplegia. When life stinks, it stinks hard. You tell ’em. R.I.P.
THE MOSQUE CONTROVERSY
Wrong Man, Wrong Place
Imam Feisal Abdul Rauf, the Islamic cleric associated with the Ground Zero mosque project, is not quite what he seems. And neither is the project.
Rauf presents himself as a moderate. There is reason for doubt. “The issue of terrorism is a very complex question,” he says. In other words: It’s complicated. And so is his relationship with Islamic extremists. He has published a book in cooperation with two affiliates of the Muslim Brotherhood, an openly terroristic organization. He refuses to acknowledge that Hamas is a terrorist organization, and he minimizes terrorist atrocities. He calls the United States an “accessory” to 9/11.
And yet there was New York mayor Michael Bloomberg, celebrating Rauf and what he stands for, and having the chutzpah to lecture critics of the mosque project about respecting the prerogatives of the owners of the site. Now we know what it takes to get Mike Bloomberg to discover property rights; at least something good has come out of this mess. And that’s not all: The Anti-Defamation League, which too often has acted as the cat’s-paw of the Left, has taken a commendable stand against the project.
This dispute has been presented as a question of whether an Islamic center and mosque should be built in proximity to the scene of the worst act of Islamic terrorism — and the worst act of political violence — ever committed on U.S. soil. But at least as germane to the dispute is the question of whether these particular parties ought to be doing so. The fact that an apologist for terrorists and an associate of terrorist-allied organizations is proceeding with this provocation is indecent. We have thousands of mosques in the United States, and who knows how many Islamic cultural centers in New York City. We do not need this one, in this place, built by these people. We’re all stocked up on Hamas apologists, thanks very much.
Our frustration with this state of affairs is multiplied by the fact that Ground Zero remains a gaping wound in the middle of lower Manhattan, rather than having been rebuilt to match the World Trade Center’s former glory. If Mayor Bloomberg is really so anxious to expedite the building of new projects in the financial district, perhaps he’d like to help do something about that, first.
Judge Walker’s Phony Facts
It was evident since last year that Judge Vaughn Walker, of the U.S. District Court in San Francisco, was on a self-imposed mission to establish a federal constitutional right to same-sex marriage, and thereby to overturn California’s Proposition 8, a constitutional amendment passed by the people of the state in 2008. From his decision to have a “trial” of the “facts” in the case rather than proceed straightaway to legal arguments about the constitutional issues (a highly unusual choice that surprised even the plaintiffs’ attorneys), to his attempt to stage the trial as a nationally televised extravaganza (thankfully brought to a halt by the Supreme Court), to his unconcealed bias in favor of the plaintiffs in virtually every aspect of the proceedings, Judge Walker had long been preparing us for a bald-faced usurpation of political power.
What Walker did not prepare us for, however, was the jaw-dropping experience of reading his sophomorically reasoned opinion. Of the 135 pages of the opinion proper, only the last 27 contain anything resembling a legal argument; the rest is divided between a summary of the trial proceedings and the judge’s “findings of fact.” His determinations of law seem but an afterthought — conclusory, almost casually thin, raising more questions than they answer.
On what grounds does Judge Walker hold that the considered moral judgment of the whole history of human civilization — that only men and women are capable of marrying each other — is nothing but a “private moral view” that provides no conceivable “rational basis” for legislation? Who can extract an answer from his muddled reasoning? Judge Walker’s wholesale smearing of the majority of Californians as irrational bigots blindly clinging to mere tradition suggests that he has run out of arguments and has nothing left but his reflexes.
But the deeper game Judge Walker is playing unfolds in the many pages of “fact finding” that make up the large middle of his ruling. There, through highly prejudicial language that bears little relation to any fact, the judge has smuggled in his own moral beliefs — placing them in precisely the part of his opinion that would normally be owed a large measure of deference in the appellate courts, which are meant to accept the lower court’s factual findings and rule only on questions of law.
To take one example: It is hardly an incontrovertible fact that “Proposition 8 places the force of law behind stigmas against gays and lesbians.” But there it is in the opinion, as finding No. 58. With “facts” like these, and appellate judges disinclined to question them, Judge Walker plainly hopes to propel this case toward a victory for same-sex marriage, regardless of how transparently weak his legal conclusions are.
But the judges who ultimately take up this appeal — the justices of the Supreme Court, not of the eccentric Ninth Circuit — should not be buffaloed by Judge Walker’s invented “facts.” Still less should they confirm the specious legal conclusions he has extracted from them.