Monday, March 16, 2015

John Eastman writes of defiance in Witherspoon's blog

John Eastman
John Eastman, chairman of National Organization for Marriage, seems to be expecting the other shoe to drop this summer; The Supreme Court concluding that same-sex marriage bans are unconstitutional. Yesterday, Mr. Eastman decided to vent his frustration in Witherspoon Institute's blog, Public Discourse.

John Eastman has inadvertently become a champion of marriage equality. He is responsible for diverting hundreds of thousands of dollars, possibly a million or more, from NOM to lawyers (including himself). In the IRS case alone, NOM spent $700,000 to receive a $50,000 settlement. That's the kind of math that an equality minded person can learn to love. NOM's case was based upon hyperbole and conspiracy theory. It is clear from emails that were cited in briefs that NOM knew all along that the IRS was guilty only of an inadvertent disclosure. Eastman's judgment has been questionable at best. Yet onward Christian soldiers they went.

Last summer in Oregon, Eastman was trying to get the courts to allow NOM to intervene on behalf of those opposed to marriage equality. Eastman's failure cost NOM untold thousands of dollars as the matter was appealed to the United States Court of Appeals for the Ninth District and then to the United States Supreme Court. This was the identical “standing” issue that was litigated on the same path as the Proposition 8 matter. Exactly how Eastman (and Brian Brown, genius that he is) thought that they could effect a different outcome will remain one of life's mysteries.

NOM could have directed these sums, squandered as legal fees, and this energy into opposing same-sex marriage. Eastman saw to it that NOM became functionally insolvent.

In the Witherspoon piece Eastman indulges in a legalese rant about the limited authority of federal district courts1. Roy Moore is Mr. Eastman's hero. However, what is most interesting is this passage towards the conclusion:
It is important to note what is not at issue in this controversy, at least not yet. That is whether public officials will be bound by a decision of the US Supreme Court wrongly interpreting the Constitution to mandate a nationwide redefinition of marriage.

The oath that all public officials take, whether they be legislators, executives, or judges, is to adhere to the Constitution. Of course, the courts have to interpret the Constitution. Yet the very same judicial opinion that famously established the principle of judicial review, Marbury v. Madison, argued strongly and persuasively that the Constitution was above every branch, including the judiciary.
Seriously? The judicial review that Eastman refers to is the product of the finding in Marbury that acts of Congress that conflict with the Constitution are not law and the Courts are bound instead to follow the Constitution. This is civics 101. Judicial review means that the courts are the arbiters of what is, or is not, constitutional.

In this case, legislatures (including citizens acting as a legislative body) in some states have passed laws that same-sex marriage will not be recognized. The matter is now submitted for judicial review whereby the Court will determine if such bans are constitutional. The Court has narrowed the scope of the question to the 14th Amendment which provides equal protection and due process. Eastman is suggesting that public officials have the power to defy the Supreme Court. Eastman goes on to conclude:
If the Supreme Court rules later this year that a constitutional provision adopted in 1868 mandates a redefinition of marriage in all fifty states, that will be the time for public officials throughout the land to determine whether they have the fortitude of a Lincoln or whether we have now reached the point where the people “have ceased to be their own rulers.” But the Alabama Supreme Court’s ruling directing state officials to cease issuing illegal marriage licenses to same-sex couples complies with existing Supreme Court precedent. It is the unlawful order of an “inferior” court that does not follow that binding precedent.
In citing Lincoln he is referring to the President's disdain over the Dred Scott v. Sandford decision which held that African-Americans were not American citizens. Dred Scott created its own undoing by fracturing the Democratic Party along geographical lines and, thus, strengthening the Republicans. Lincoln criticized, but did not usurp, the Court. Lincoln's criticism in a passage of his first inaugural address has become favorite reading material for the Christian right. It's unfortunate that these same people don't seem to be terribly interested in the establishment clause of the First Amendment.

Now Mr. Eastman wants individual public officials to have to power to overrule the Supreme Court if the Court reaches a decision that they do not like. Anarchy is defined as a state of disorder due to the absence or nonrecognition of authority. Anarchy is what Mr. Eastman is suggesting. It is scary that this guy was once the dean of a law school.

What on earth is he talking about? Only John Eastman (or his personality disorder) know for sure.

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1 Eastman claims that Camreta v. Greene established a precedent to support his position. However, Camreta was a child custody case that the Court was reviewing after the child became an adult. The matter was moot. More importantly if it is precedent then Eastman fails to explain how (it doesn't seem to be on point).

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