Breitbart.com promoted a series of falsehoods about the legality of Proposition 8 in order to champion the efforts of San Diego County Clerk Ernest J. Dronenburg, Jr., who unsuccessfully sought to have the California Supreme Court issue a stay on the issuing of same-sex marriage licenses in his county.
In a July 23 column, Breitbart.com legal affairs analyst Ken Klukowski lambasted the judicial overruling of California's Proposition 8 and argued that Dronenburg "is under no court order" to issue marriage licenses to same-sex couples. Klukowski's analysis of the Prop 8 case and his assertion that Dronenburg has the authority to block same-sex marriages are fundamentally misguided.
First, Klukowski vehemently denounced Vaughn Walker, the U.S. District Court judge who found Prop 8 unconstitutional in 2010. According to Klukowski, Walker's legal reasoning was both flawed and deeply antagonistic toward religious Americans:
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.
Walker's opinion made no such pronouncements. The judge did indeed deem the arguments for Prop 8 "irrational," writing that the measure "unconstitutionally burden[ed] the exercise of the fundamental right to marry and creat[ed] an irrational classification on the basis of sexual orientation." Klukowski imagines that the latter finding amounted to a mean-spirited dismissal of "the peaceful faith of over 200 million Americans," but the actual basis of Walker's finding that Prop 8 constituted irrational discrimination was sound legal analysis, not animus toward religious Americans.
Citing Supreme Court rulings like Heller v. Doe, Walker noted that legal precedent clearly establishes that the 14th Amendment's equal protection clause is violated when a law arbitrarily "targets a suspect class," as Prop 8 did. If a law's supporters can prove that there's a rational basis for singling out a group, then it will pass constitutional muster. As 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's problem extends beyond Walker's use of the rational basis test, however. After blasting Walker's ruling, Klukowski contended that it actually only applied to the two counties directly involved in the case, not the whole state of California. That's why Klukowksi believes Dronenburg would be on solid footing in denying marriage licenses to same-sex couples in his county.
As the Los Angeles Times reported in June, anti-equality advocates in California have seized on a provision of the state constitution to bolster claims like Klukowski's. The problem is that experts on the California Constitution find their arguments laughable:
[National Organization for Marriage Chairman John] Eastman said the supporters of Proposition 8 could challenge the scope of Walker's order in federal district court or in state court under a provision of the California Constitution that prevents state officers from refusing to follow laws without an order from an appeals court.
But Santa Clara University law professor Gerald Uelmen, an expert on the state constitution, said the provision cited by Eastman does not apply to constitutional amendments such as Proposition 8.
"I think they would be laughed out of state court," Uelmen said.
He said he saw "no obstacle" in the California constitution to prevent Gov. Jerry Brown from refusing to enforce Proposition 8 statewide.
"We have a federal court ruling that says Proposition 8, a section of the California Constitution, violates the federal constitution, and that ruling stands," Uelmen said. "I expect it to be fully implemented by all state officers."