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NOM’s Attack on the US Constitution and Federal Courts


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By Robert Cruickshank

For the last ten years, ever since Proposition 22 passed in November 2000, the battles over marriage equality at the ballot box have taken place in an alternate reality, where the basic constitutional guarantees of equal protection under the law, and of due process, are somehow no longer operative. With Perry v. Schwarzenegger going to trial this week, that alternate reality is finally coming crashing down around the opponents of equality.

The forces that have promoted and won ballot-box battles against marriage equality have had to undermine the U.S. Constitution in order to prevail. Now that the federal courts are about to call them out on this behavior, they’ve decided to undermine another core element of American democracy — our legal system.

Knowing that they don’t have a constitutional leg to stand on, marriage equality opponents have decided the only way they can keep their ruse going is to discredit Judge Vaughn Walker and the federal court system. As with any litigant who knows they have a losing case, Prop 8 supporters are hoping that they can manipulate the public into believing that, somehow, properly interpreting the Constitution is unfair and a case of “judicial activism.”

Leading the effort to attack the court is the National Organization for Marriage (NOM). As Karen Ocamb reported, NOM Executive Director Brian Brown acknowledges they are unlikely to win:

We do not expect to win at the trial level, but with God’s help, at least five members of the current Supreme Court will have the courage to defend our Constitution from this grave attack.

As you can see, they’re not done trying to misinterpret the Constitution, but NOM’s primary strategy is to claim that any outcome other than one that favors them is somehow flawed. Would they have attacked the initiative process and direct democracy had Prop 8 failed?

Judge Vaughn Walker is the immediate target of NOM’s misinformation strategy, as shown by NOM’s Maggie Gallagher’s baseless attack on the judge:

The case will be a show trial in a kangaroo court. I don’t say that lightly of any federal judge, but Judge Walker’s extraordinary bias has already been flagrantly on display.

A kangaroo court? For an organization that defines itself as upholding “tradition” it seems that they’re actually much more interested in undermining centuries-old constitutional and legal institutions. Gallagher can’t actually find any examples of “bias,” so she claims that the fact that the Yes on Prop 8 campaign, including NOM, has to defend itself and its actions in court is somehow unfair.

NOM’s profound unwillingness to explain its true motives in public is further demonstrated by their fight to close the courtroom to cameras, despite the public’s right to see and hear what goes on in their courts:

But the third outrageous ruling by Judge Walker is the worst of all: On Dec. 22, he ordered the trial televised…

NOM is doing this to try and change the public’s perception of who the true victims are in this battle. While they actively work to deny loving couples and families the right to marry, they take one or two unfortunate examples of overzealous Prop 8 opponents and use that to weave a narrative of a persecuted group being hurt by a biased judge.

To top it off, NOM’s Maggie Gallagher gives an interpretation of the courts and the Constitution that would earn her a failing grade in any civics class:

At stake in this case is not only the future of marriage in all 50 states, but the future of democracy, the future of fair play, ordinary decency and common sense. Not to mention a little thing like constitutional limits on the power of judges…

Who will stand up for the core civil rights of the people of California… to participate in democracy without fear?

Except that’s not how it works. As John Adams and James Madison would quickly explain to her if they were still alive, the Constitution exists to provide limits on what voters can do. American democracy is not absolute — there are things that the voters or legislators simply cannot do. The Constitution lays out what those things are, in order to protect the rights of everyone, particularly those who are not in the majority. And the the federal courts have the power to enforce those Constitutional protections.

Ultimately it is the defenders of marriage equality who are the traditionalists, those who turn to our Constitution and the federal courts for protection against those who abused the initiative process to deny rights to other people. In response, NOM and other Prop 8 backers have become even more radical and desperate in their attacks on our Constitution, our courts — and of course, on the committed same-sex couples and their families whose rights the Constitution and courts exist to defend.

As the trial unfolds, we can expect NOM and their allies to continue to try and convince the public the court is biased. The Prop 8 Trial Tracker will continue to monitor and report the truth about those misleading right-wing claims.


  • 1. Tim  |  January 11, 2010 at 8:12 am

    First off, thanks for making this blog. I will be following it quite closely.

    I was talking with a friend recently about the idea of the government protecting the rights of the minority from the will of the majority, and the only thing I could find on the topic was Federalist #51 (I believe… it was a few months ago). Can you please point me in the direction of additional sources about this concept?

  • 2. Robin Tyler  |  January 11, 2010 at 9:41 am

    Thanks for doing this Rick. I stood outside the
    courthouse in Pasadena, stunned that we were
    not going to be able to see the trial. What you
    did, transcribing the historical case that
    started today, is a great service for the millions
    of us that were denied the right to see the
    proceedings that affect our lives so profoundly.
    Robin Tyler, Petiioner (Tyler
    v State of California) to overturn Prop. 9.

  • 3. DebraCJ  |  January 11, 2010 at 11:08 pm

    I will also be following this blog and very much appreciate everyone's efforts to get the information out.

    I found the reference to the Federalist interesting–I'm reading it now and #51 is the next in line.

    My opinion is that limiting marriage to a man and woman is unconstitutional because it imposes the religious beliefs of one group on all citizens. If marriage is a religious institution the government should not regulate it at all. If it is a legal contract, there is no reason to limit it to heterosexual couples–I know of no other such restriction on legal contracts.

  • 4. NOM’s Maggie Gallag&hellip  |  January 28, 2010 at 5:25 pm

    […] 28, 2010 Remember way back when, before the trial started, when NOM was predicting they would lose this case because Judge Walker wasn’t ceding to their lawyers’ every demand and […]

  • 5. Live Updates from the Pro&hellip  |  May 6, 2012 at 12:59 am

    […] Add comment January 10, 2010 Robert Cruickshank–> […]

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