Cross-posted at Prop 8 Trial Tracker.

As if we needed more confirmation that the anti-equality crowd is bereft of logical arguments and grasping at straws, a group of about 30 of Family Research Council’s state affiliates, called Family Policy Councils, have filed an amicus brief with the 9th Circuit Court of Appeals in the Perry v. Schwarzenegger Proposition 8 case.  They’re asking the Court to overturn Judge Vaughn Walker’s well-reasoned ruling that Prop 8, which stripped gay and lesbian couples of their right to marry in California, is unconstitutional.  You know that the amicus brief is a terrifically embarrassing document when a non-lawyer like me can look into it and see whole schools of red herring.  Here are just a few of the keepers.  From the very first sentence of the Summary of the Argument section on page 2:

The United States’ government consists of checks and balances designed to limit the power of the various parts of the government, ensuring it follows the will of the people.

Our federal government, as set out in the U.S. Constitution, uses the separation of powers principle to enforce power sharing among the three co-equal branches of government (executive, legislative and judicial).  The purpose of this system of checks and balances is to prevent any one branch of government from gaining too much power, not to the protect “the will of the people”.

Apparently angling for any bottom-feeders on the Court, the FPCs actually mash these moldy old dough balls onto the hook.  From page 9:

Through the initiative process, the people of California have made their will known. In their state, they want marriage to remain as it has for thousands of years. They spoke twice in eight years, and their will should not be subverted by one judge of one branch of the federal government’s redefining core institutions like marriage to follow the whims of the elite.

The FPCs are hoping you’ll buy into the notion that “the people” of California have unlimited power in the state.  They don’t.  The U.S. Constitution is the supreme law of the land, and while it establishes the federal judiciary as a co-equal arm of government, it makes no explicit provision for citizens’ initiatives.  If a majority of voters passes a state constitutional amendment that violates the U.S. Constitution as Prop 8 does, the fact that those voters were in the majority is irrelevant.  The FPCs don’t want you to consider the fact that a voting majority can act unconstitutionally, and that the federal judiciary has the power to strike down any unconstitutional measure they may pass.

Since when does the 52% of California voters who voted for Prop 8 represent “the people of California”?  Almost half, 48%, voted against the discriminatory measure.  As for marriage as it’s been “for thousands of years”, that would include plural marriage, concubinage and a prohibition on remarriage after divorce.  The FPCs not only want us to ignore the U.S. Constitution, they want to create a new math (52% = 100%) and whistle past their own “Judeo-Christian” history as set down in the Holy Bible.

There’s enough red herring here for a Friday dinner fry-up.  If you want seconds, there’s plenty more in the brief.FYI here are the names of Family Policy Councils that signed onto the brief.  They’re represented by Liberty Institute of Plano, TX:

Association of Maryland Families,

California Family Council,

Center for Arizona Policy,

Citizens for Community Values,

Cornerstone Action,

Cornerstone Family Council,

Delaware Family Policy Council,

Family Action Council of Tennessee,

The Family Foundation,

The Family Policy Council of West Virginia,

Family Policy Institute of Washington,

Florida Family Policy Council,

Georgia Family Council,

Illinois Family Institute,

Independence Law Center,

Iowa Family Policy Center,

Louisiana Family Forum Action,

Massachusetts Family Institute,

Michigan Family Forum,

Minnesota Family Council,

Missouri Family Policy Council,

Montana Family Foundation,

New Jersey Family First,

New Jersey Family Policy Council,

North Carolina Family Policy Council,

Oklahoma Family Policy Council,

Oregon Family Council,

Palmetto Family Council,

Pennsylvania Family Institute,

Wisconsin Family Action, and

WyWatch Family Action