The Yes on Proposition 8 campaign relied heavily on the argument that the California Supreme Court engaged in "judicial tyranny" when it ruled that California marriage law violated the California Constitution to the extent that it prohibited same-sex marriage. Judicial tyranny, we are often told by some political groups, involves black-robed tyrants ignoring the Will of the People by striking down democratically enacted laws based on an analysis of constitutional rights.

Now the Yes on 8 campaign would like you to know that not all judicial tyranny is bad.

The Protect Marriage Coalition is now suing to overturn democratically enacted California law — specifically, the law that requires public disclosure of donors to California propositions — based on the theory that the law violates donors' rights under First Amendment, because it leads to donors being harassed.. Now, I haven't read the cases closely enough to evaluate this argument seriously, but respectable commentators previously suggested that it is not outside the realm of possibility. It's just amusing that the people who have yelled the loudest about black-robed tyrants overturning the will of the people are now asking for exactly that. Unapologetic naked hypocrisy, like many human foibles, is funny.

But, let's face it, people who have been angry about judicial review since Brown v. Board of Education — if not since Marbury v. Madison — have never been models of consistency. You didn't hear any howls of outrage about "black-robed tyrants" from conservatives when the Supreme Court struck down a democratically enacted firearms statute in D.C. v. Heller and announced, for the first time, that the Second Amendment confers individual rights. The "OMG judicial tyranny" crowd has a relationship with judicial review rather like Rush Limbaugh's relationship with the ACLU — happy to shit on it 99% of the time, happy to accept its help when it comes riding in to support your noisy fat ass from government overreaching in a dope case.

Not to mention that some of the justifications offered by the Yes on Prop 8 litigants are rather pathetic:

For example, “Decl. of John Doe #4 (received email that read “I AM BOYCOTTING YOUR ORGANIZATION AS A RESULT OF YOUR SUPPORT OF PROP 8”)”

The choice of venue is also odd, in light of the Protect Marriage Coalition's stated views on democratic integrity. Say what you want about the California Supreme Court, but it is made up of justices appointed by governors appointed by the people of California, subject to removal by the voters of California during reconfirmation elections, interpreting the California constitution — which in turn is enacted by democratic process in California. Yet the Protect Marriage folks have chosen to file in federal court in Sacramento, leaving the resolution of the matter to a judge appointed for life by the President and confirmed by the U.S. Senate and thereafter not facing any meaningful democratic impediment. Odd, really. It's almost as if the Protect Marriage Coalition knows perfectly well that its rhetoric was bullshit.

And then there's the substance. The Yes on 8 folks think it is terrible, terrible, that donors to Yes on 8 can be harassed or abused or oppressed or annoyed. Yet the Yes on 8 campaign itself sent letters to donors to No on 8 threatening them with public scrutiny if they didn't cough up hush money:

Equality California is advertising on its website that it has received a contribution of at least $10,000 from you. … Make a donation of a like amount to ProtectMarriage.com which will help us correct this error and restore Traditional Marriage. … Were you to elect not to donate comparably, it would be a clear indication that you are in opposition to traditional marriage. You would leave us no other reasonable assumption. The names of any companies and organizations that choose not to donate in like manner to protectmarriage.com but have given to Equality California will be published.

From the difference between what the Protect Marriage Coalition says and what it does, you may glean much about the sincerity and character of its leaders.

Last 5 posts by Ken

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