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The Right Wing’s Continuing Delusions About Prop 8′s Legality

California FlagJudge Vaughn Walker was quite clear regarding the constitutionality of Proposition 8, but that isn’t stopping people from trying to say that it is still in force. is one of those sites trying to push this idea that Prop 8 is still legal.

Recently, San Diego County Clerk Ernest J. Dronenburg Jr filed a lawsuit to try and halt same-sex marriages in California. For legal affairs analyst Ken Klukowski, Prop 8 is still in effect and Dronenburg have ever right to refuse to perform same-sex marriages.

To start with, Klukowski disagrees with Walker’s decision. According to Klukowski, Walker’s legal rationale was flawed and it was antagonistic towards the religious. Klukowski writes “The first clear item is that his opinion is simply terrible. He made official judicial findings of fact that religious beliefs defining marriage as one man and one woman are irrational, and driven by either superstitious ignorance or hateful bigotry. It is emphatically not the province of the federal courts to make such pronouncements regarding the peaceful faith of over 200 million Americans.”

There are two problems with this argument. First of all, Klukowski is wrong about Walker’s decision. Walker never calls the religions of people irrational. He just finds the arguments made by men like Klukowski as being less than convincing and very irrational.

Another problem for Klukowski is the issue of the “peaceful faith of over 200 million Americans.” The problem for Klukowski is that 200 million people do not back the discrimination of LGBT people. In fact, only about 90,000,000 people support Klukowski’s position currently, not anywhere near 200,000,000 he claims. That is, of course, the latest numbers based upon the number of people who oppose same-sex marriage in the United States.

Walker cited various rulings like Heller v. Doe in which there was legal precedent that clearly states that the 14th Amendment’s equal protection clause is violated when a law arbitrarily targets a suspect or protected class in the manner that Prop 8 did. Walker wrote “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same sex couples.”

Klukowski also, erroneously, believes that the Walker ruling only applies to the two counties directly involved in the case and not the whole of California despite the fact that the case covers Prop 8 and the whole state. This erroneous belief is why Klukowski believes that Dronenburg has the right to deny marriage licenses to same-sex couples.

Klukowski and various other anti-equality activists in California have seized upon a a provision in the state constitution which supposedly bolsters Dronenburg’s and Klukowski’s claims except that it doesn’t. National Organization for Marriage Chairman John Eastman is one of those who has bought into this argument, in fact. Supposedly, under the California constitution, supporters of Prop 8 could challenge the scope of Walker’s order under a provision that prevents state officials from refusing to follow laws without an order from the appeals court.

The problem, according to Santa Clara University law professor Gerald Uelmen, an expert on the state’s constitution, notes that this provision only applies to the laws of California, not provisions of the state constitution. Uelmen stated that there is no obstacle in the state Constitution to prevent Governor Jerry Brown from demanding that Prop 8 no longer being enforced. Uelmen told Equality Matters that “I think they would be laughed out of state court. We have a federal court ruling that says Proposition 8, a section of the California Constitution, violates the federal constitution, and that ruling stands. I expect it to be fully implemented by all state officers.”

Unfortunately, the anti-equality groups have been pushing this whole idea that they have some grounds with which to challenge the overturning of Prop 8. They continue to under the belief that they have some path to victory at this point. Which they do not.



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2 Responses to The Right Wing’s Continuing Delusions About Prop 8′s Legality

  1. Larry Esser

    July 29, 2013 at 8:50 am

    Klukowski says: “He (Judge Walker) made official, judicial findings of fact that religious beliefs defining marriage as one man and one woman are irrational, and driven by either superstitious ignorance or hateful bigotry.” Walker said nothing of the kind; what he said is that there is no reason to limit marriage to only one woman and one man and so limiting marriage to keep same-sex couples who wish to marry is what is ignorant and bigoted.
    We may be cheered by the fact that if this is the best the anti-marriage groups can come up with, we are going to keep doing just fine.

  2. P Smith

    July 27, 2013 at 10:52 pm

    Klu Kows Ki. What an appropriate name for him.