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Ed Whelan’s Never-Ending Crusade Against LGBT Equality

June 20, 2011 12:14 pm ET by Carlos Maza

National Review Online blogger Ed Whelan has spent the last sixteen months spearheading a campaign to overturn U.S. District Judge Vaughn Walker’s 2010 decision in Perry v. Schwarzenegger – the landmark case which found California’s Proposition 8 to be unconstitutional.

Whelan has consistently asserted that – as a gay man in a long-term relationship – Walker was a “direct beneficiary” of his decision to strike down the state’s ban on same-sex marriage. As a result, Whelan argues, Walker should have either recused himself from the case or disclosed his sexual orientation and relationship status before the trial started.  

Last Tuesday, Whelan’s campaign suffered a major setback.  U.S. District Judge James Ware rejected a motion to vacate Walker’s decision, arguing that that doing otherwise would have created “an unworkable standard for disqualification” and been “detrimental to the integrity of the judiciary.”

Whelan’s First Grumblings

Whelan’s call to have Walker’s decision thrown out actually began long before the Perry decision. In February of 2010 – roughly six months before Walker’s initial decision was released – Whelan claimed that Walker’s long-term, same-sex relationship was evidence of his “manifest inability to be impartial.” According to Whelan, Walker was hellbent” on using the case to “advance the cause of same-sex marriage.”

This isn’t the first time Whelan has found an excuse criticize even potentially pro-LGBT legal decisions:

  • Calling the Iowa Supreme Court’s decision to legalize same-sex marriage “gobbledygook
  • Accusing Elena Kagan of a “dereliction of duty” for declining to review a Ninth Circuit decision concerning Don’t Ask, Don’t Tell
  • Accusing Kagan, President Obama, and Attorney General Eric Holder of attempting to “sabotage” the Defense of Marriage Act through “stealth measures”
  • Attacking former judicial nominee Goodwin Liu for his “absurd” support for marriage equality

Initially, most supporters of Proposition 8 shied away from demanding that Walker’s decision be vacated as a result of his sexual orientation. University of Notre Dame law professor Gerard V. Bradley wrote that it was “too late” to bring up issues of how Walker’s sexual orientation would affect his decision. The National Organization for Marriage (NOM)also  stopped short of calling for his recusal, insisting that the Supreme Court would be aware of Walker’s bias if and when the time came for it to rule on the issue. 

They’re aversion to demanding that Walker’s decision to be vacated was justified: a number of judicial ethicists agreed that attempting to disqualify Walker from ruling on a same-sex marriage case simply because he’s in a committed same-sex relationship is meritless and “ridiculous.” 

Growing Momentum

Whelan remained determined, however, to continue his crusade against Walker. A month before a decision in Perry was announced, Whelan wrote that the Walker’s potential interest in entering a same-sex marriage in California raised questions about whether “his impartiality might reasonably be questioned” and thus justifying his recusal. He also raised the issue during a radio interview on August 4, the day Walker’s decision was announced.  In the following months, Whelan made the point again and again and again.

Eventually, Prop 8’s defenders decided to include Whelan’s arguments in their motion to have Judge Walker’s decision vacated (much to Whelan’s delight).

NOM quickly fell in line, cheering on the motion to prove Walker’s personal bias in the case. Whelan’s legal reasoning even gained traction with a few other right-wing commentators, including John Eastman and the Liberty Counsel’s Matt Barber.

It did not attract the support, however, of a broad spectrum of mainstream media commentators and legal experts, who condemned the motion as “slimy,” “absurd,” and “preposterous.”

Whelan remained unphased by the opposition. He praised the Prop 8 proponents for “systematically dismantl[ing]” the “feeble arguments” presented by those defending Walker’s decision. Whelan’s fellow NRO blogger, Matthew Franck, even praised Whelan for his “airtight case” against Walker.

According to Whelan, all of the necessary parts were in place to finally do away with Walker’s ruling.

When it came time to make the case against Walker’s impartiality in court, however, things were not so “airtight.” The audience in the federal courtroom was reported to have burst out laughing when Prop 8’s proponents asserted that Walker should have disclosed whether he planned to marry his partner of ten years. Even before Judge Ware’s decision had been announced, commentators were predicting that the motion to vacate Walker’s ruling would be denied.

It took Ware less than 24 hours to make his decision, thoroughly dismissing Whelan’s arguments.

The Crusade Continues

Undeterred as always, Whelan didn’t waste a second deploying the same tactic he had initially used against Walker: attack the judge’s credibility even before a decision is handed down.

Hours before Ware denied the Prop 8 supporters’ motion, Whelan wrote a blog post (1) predicting that his argument would be rejected (2) criticizing Ware for lacking the “clarity and courage to do the right thing” and (3) accusing Ware of being lenient towards Walker because of their long-term friendship.

He also posted an e-mail he received from a colleague in which Ware was described as someone with “a well-earned reputation for laziness” looking for an opportunity “to burnish his credentials with the left and atone for his past indiscretion(s).”

Not surprisingly, Whelan has already criticized Ware for his “badly confused” ruling. If anything, Whelan seems even more committed to making the case for vacating Walker’s decision.

And unfortunately, it appears that the supporters of Prop 8 are looking to appeal Ware’s decision, ensuring that Whelan will continue to spout his ridiculous legal opinion for the foreseeable future.  

It’s unclear if Whelan actually believes that he has a shot of convincing any respectable judge to vacate Walker’s decision. As Ari Ezra Waldman, Teaching Fellow at the California Western School of Law in San Diego, points out, Whelan’s crusade against Walker may just be part of the effort to delay marriage equality for as long as possible:

The Prop 8 proponents know that they are fighting a losing battle -- their attorneys were inept at trial, failing to offer evidence; they have no real arguments on their side; all three judges on the Ninth Circuit panel to hear the standing and merits were skeptical. The only hope is to delay, to delay same-sex marriage for so long, to frustrate the gay community so much, that we make the first mistake.

One thing is clear, though. Ed Whelan is a tireless ideologue whose legal commentary shouldn’t be taken seriously by anyone.


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