SAN FRANCISCO — A federal appeals court has ruled that a California-voter-approved initiative to define marriage as between one man and one woman has no rational basis and violates the U.S. Constitution.
In a 2-to-1 decision, a three-judge panel of the Ninth U.S. Circuit Court ruled that Proposition 8, passed in 2008 by 52% of the state’s voters, “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”
Bishops swiftly denounced the decision. Calling the ruling “a grave injustice,” Cardinal-designate Timothy Dolan, president of the U.S. Conference of Catholic Bishops, said, “The Constitution of the United States most assuredly does not forbid the protection of the perennial meaning of marriage, one of the cornerstones of society. The people of California deserve better. Our nation deserves better. Marriage deserves better.”
Prop. 8 defense attorneys called the ruling in Perry v. Brown unfortunate but no major surprise. Ever since the case began, “we’ve known that the battle to preserve traditional marriage will ultimately be won or lost not here, but, rather, in the U.S. Supreme Court,” said Andy Pugno, general counsel for the ProtectMarriage.com coalition.
ProtectMarriage.com fought and won the right to defend Prop. 8 on behalf of the voters after then-California Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown, who is now governor, refused to do so.
“Now that the Ninth Circuit has rendered its decision, the case can finally move to the U.S. Supreme Court, where it will be decided on sound legal arguments rather than the emotional appeals by those trying to obliterate the only institution that unites children with their moms and dads,” said Bill May of Catholics for the Common Good, who helped lead the Catholic campaign for Prop. 8.
May called the author of the decision — Judge Stephen Reinhardt — “one of the most-overturned judges in the most-overturned court in the U.S.”
“The decision by Judge Reinhardt is nothing more, and nothing less, than the substitution of his policy preferences for those of the people of California,” said Thomas Farr, who directs the Religious Freedom Project at Georgetown University’s Berkley Center for Religion, Peace and World Affairs.
“Its central holding,” Farr said, “is that Prop. 8 illegitimately eliminated a right to same-sex ‘marriage’ that was already present in the California state Constitution. But that ‘right’ had been inserted into the California Constitution not by the democratic process, but by the California Supreme Court.”
“In that sense, his ruling represents the sustaining of judicial tyranny by judicial tyranny. If it is allowed to stand, it is yet another example of democracy being hijacked by the people George Will once aptly labeled ‘our robed masters.’”
Reinhardt’s ruling echoes that of now retired federal court Judge Vaughn Walker, who previously declared Prop. 8 unconstitutional. Walker was later revealed to be living in a long-term relationship with a same-sex partner.
“We will immediately appeal this misguided decision that disregards the will of more than 7 million Californians who voted to restore marriage as the unique union of only a man and a woman,” Pugno said. “We are confident that the rights of California voters will finally win out.”
What’s at Stake
Same-sex “marriage” supporters say this case is about ending discrimination against same-sex couples. “This case is about equality and freedom and dignity and fairness and decency,” said anti-Prop. 8 lawyer Theodore Olson at a press conference in Los Angeles. “It is about whether we are going to eliminate second-class citizenship, whether we are going to treat thousands, millions of our citizens as less equal, less respected; different, less entitled, isolated.”
Prop. 8 proponents, however, say this case is about courts and attorneys trying to change the definition of marriage. Bill May said that Prop. 8 opponents have created “a new definition of marriage as merely the public recognition of a committed relationship for the benefit of adults.”
In fact, May said, “The voters of California know that marriage is much more than that. It is the reality that unites a man and a woman with each other and any children born of their union. This is what marriage is; that is what it does.”
Same-sex “marriage” activists often charge that traditional-marriage defenders are simply trying to impose their values on others. But Bishop Salvatore Cordileone of Oakland, Calif., observed, “Our society does not operate in an amoral or value-less vacuum. To flourish, [society] must be infused with moral direction that is grounded in truth.”
Bishop Cordileone is chairman of the U.S. bishops’ Subcommittee for the Promotion and Defense of Marriage.
The true meaning of marriage, said Bishop Cordileone, “is ultimately not subject to a vote or court ruling.”
Still, whenever marriage has been put to a vote, Americans overwhelmingly reject the idea of changing its definition. Alliance Defense Fund senior counsel Brian Raum said that “63 million Americans in 31 state elections have voted on marriage, and 63% voted to preserve marriage as the timeless, universal, unique union between husband and wife.”
A Question of Liberty
In his written opinion, Judge Reinhardt asserted that the ruling has no effect on religious freedom.
Farr called this assertion “patently false.” He said, “The decision in effect disenfranchises millions of Latino and other citizens who voted to protect marriage precisely on religious grounds. Like Judge Vaughan Walker’s ruling before him, Reinhardt declares their views to be unconstitutional.”
Reinhardt, however, goes even further. “He summarily dismisses parents’ concerns that public schools will now teach that ‘marriage’ in fact means the union of two men or the union of two women in precisely the same way that it means the union of one man and one woman,” Farr said.
“Schools teach about the world as it is; when the world changes, lessons change,” Reinhardt wrote. He likened the teaching of same-sex “marriage” to the election of a new governor, the discovery of a new chemical element, or the adoption of a new law permitting no-fault divorce. He wrote that all of these are simply “empirical facts” students learn about the world.
“In short, the ‘facts’ have changed,” Farr said. “[The state is saying] get used to it. It would be one thing if these ‘facts’ had been created by a democratic process. That they were created by judges who do not accept the judgments of the democratic process poses a challenge not simply for religious freedom, but for the American democratic system.”
Supreme Court Challenge?
The legal assault on Proposition 8 began almost immediately after California voters passed the traditional-marriage amendment in November 2008. The first attempt to strike it down as unconstitutional failed in May 2009, when California’s Supreme Court ruled the people have a right to amend their own constitution.
But the very next day a newly minted organization — the American Foundation for Equal Rights, bankrolled by deep pockets in the Hollywood entertainment industry — filed suit in a federal court in San Francisco on behalf of two same-sex couples denied California marriage licenses. Walker, who heard the case, ruled Prop. 8 unconstitutional. ProtectMarriage.com lawyers appealed his decision.
Now the Ninth Circuit has agreed with Walker. However, Reinhardt wrote a more narrowly cast opinion than Walker did and avoided drawing any grand constitutional right to marriage.
As their next step, ProtectMarriage.com attorneys can either appeal directly to the U.S. Supreme Court or ask an 11-judge panel on the Ninth Circuit to review the decision. Pugno, legal counsel for ProtectMarriage.com said the team was still weighing the options.
The Supreme Court has an overwhelming caseload of more than 10,000 cases on the docket per term. Plenary review, in which the justices hear oral arguments by attorneys, is granted in only about 100 of these cases.
“Judge Reinhardt was certainly trying to write a narrow decision in the hopes that he would thereby avoid Supreme Court review and reversal,” said John Eastman, an authority on constitutional law at Chapman University Law School. “But as the plaintiffs’ lawyer said during my debate with him on PBS’ Newshour, the ‘principles’ underlying the opinion have far-reaching implications for the nation. This is therefore not a case that I expect the Supreme Court to duck, however much Judge Reinhardt tried.”
Charles LiMandri, West Coast regional director for the Thomas More Law Center, calculates there are enough votes on the current Supreme Court for traditional marriage to win: “I think we have the votes there now: four votes for sure, from practicing Catholics. I don’t think Justice Kennedy, who’s the swing vote, is going to be inclined to create another Roe v. Wade and divide the nation — not when 31 states have constitutional amendments on the issue.”
Register correspondent Sue Ellen Browder writes from Ukiah, California.
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What I don’t understand is that if it hasn’t been determined that homosexuality is a heritable trait like race or gender, then why/on what basis does the law recognize ‘gays’ and ‘lesbians’ as a special class?
I am always saddened to see the sloppy thinking exemplified by this quote: “In his written opinion, Judge Reinhardt asserted that the ruling has no effect on religious freedom.
Farr called this assertion “patently false.” He said, “The decision in effect disenfranchises millions of Latino and other citizens who voted to protect marriage precisely on religious grounds. Like Judge Vaughan Walker’s ruling before him, Reinhardt declares their views to be unconstitutional.”
Farr deliberately conflates religious freedom wish political disenfranchisement. Not only is it not disenfranchisement - they were certainly entitled to vote - but this decision in no way prevents those people from practising their religion as they see fit. A vote is not a religious act. It may be motivated by religious belief, but it is not in itself a religious act.
Frankly, every argument I’ve ever seen against same-sex marriage is based on sloppy thinking, fear-mongering, specific religious tenets, or outright bigotry.
“serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”
Wrong. The majority of voters simply said that marriage is a meaningful union of man and woman - the two genders that exist in our human race. Other relationships are just that - other relationships.
For anyone who’s interested, National Organization for Marriage (NOM) has statements about the case.
Please consider this case is about licensing and whether the granting of licenses by civil government is discriminatory. Churches, ministers, etc. only solemnize a marriage. The state grants the license to marry, a word in this context that signifies a contract between two consenting adults of sound mind. The civil contract carries rights, benefits, responsibilities, and remedies. I would rather live with a government that is fair rather than unjust. Consider there is no civil contract that I know of that carries a sex test - that is, one that excludes a party because of their sex. I can see no reasonable cause to prohibit marriage license because of sex. Consider all the types of licenses governments grant - dog licenses, drivers license, business licenses, gun licenses, liquor licenses, etc. In no case does the civil government discriminate because of sex. Montana, unfortunately, has a marriage amendment, but it is much more. It prohibits any same sex relationship from being recognized by the government and is not unlike the the banning of Jewish/Non-Jewish relationships in the early 1930’s in Germany. So as Catholics, do we want to stand on the side of civil justice or dogma?
We are reaping the whirlwind of decades of slovenly appointments “packing” our courts with non-representative agenda driven “judges” - The 9th Circuit is a “poster child” for just how out of whack the Federal Court system has become. Who can forget the smarmy un-recused Chief Justice Alex Kozinski who shared his thousands of pornographic photos while presiding over an obscenity trial in L.A. Who can forget the 9th Circuit judges ruling “One Nation under God” in the pledge unconstitutional. Who can forget the 9th Circuit judges ruling the Cross in the middle of the Mohave Desert unconstitutional. Who can forget the 9th Circuit declaring the ~100 year old Cross on Mt. Soledad in San Diego unconstitutional. So who could be surprised when the 9th Circuit upheld the tainted ruling of unrecused “Chief” U.S. Judge Vaughn Walker who hid his sexual orientation conflict of interest declaring the sacred votes of Millions in California unconstitutional.
What can we do? Well for a start in every State where Governors and/or Legislative committees “nominate” candidates Soviet Union style for the judiciary the Legislatures should act to ban this failed practice. Go back to the historic practice of requiring lower court judges to run for elective office. In that way and only in that way will the “pool” of prospective new judges be purified by the electorate. California shows us what happens when the “professional” elites are in charge ... the agenda driven special interest scum rises to the top ... We can not and should not count on “experts” to appoint our judges.
“In that sense, his ruling represents the sustaining of judicial tyranny by judicial tyranny. If it is allowed to stand, it is yet another example of democracy being hijacked by the people George Will once aptly labeled ‘our robed masters.’”
## He’s crying foul because his side lost. There would have been no complaints from him had the case gone the other way. IOW, the result is more important than how it was arrived at. This an immoral & unCatholic position - sheer relativistic piffle. No surprises from his lot then. As for talk of the majority, the voters matter to the bishops only when they and the bishops on thame side - the bishops don’t care a pin for democracy in itself; they use democratic legitimacy as an argument only when the people agree with them. Otherwise, arguments from democratic legitimacy are ignored, because the people fail to say what the bishops want to hear. If the bishops were in good faith, they would see that agreeing with the bishops on marriage & Prop 8 could very well be an example of secularism & relativism; & that a more Christian descision might be, to disagree with the bishops on Prop 8 & marriage.
Rider, I don’t think religion, national origin, age, veteran status, familial status, citizenship, poverty and disability are necessarily heritable traits either, do you? But they can be regarded as special classes in the law nonetheless. The special suspect classes to which strict scrutiny may apply must have experienced a history of discrimination, must be definable as a group based on “obvious, immutable, or distinguishing characteristics” (not necessarily heritable), be a “politically powerless” minority, and its characteristics must have little relationship to the government’s policy aims or the ability of the group’s members to contribute to society. Even Catholic Church teaching makes a special point of referring to “homosexual persons” and discrimination. There’s obviously a reason for it. But the suspect classes are not the only classes which can be protected by court decisions. They’re just the specially protected ones with a special standard in the law. And therefore, whether or not same-sex couples or gay people are specially protected as so-called suspect classes in the law, that does not mean they cannot be protected as a class from unjust discrimination by the courts.
Just more proof that gubamint has no business in marriage. Marriage is a cultural institution and a religious sacrament. No one should need the gubamint’s consent to be married. All they should need is their church’s and/or familial consent. Still can’t find in any constitution where gubamint is supposed to regulate marriage.
Rilke’s Granddaughter:
Frankly, every argument I’ve ever seen FOR same-sex marriage is based on sloppy thinking, fear-mongering, specific LEFT WING POLITICAL tenets, or outright bigotry.
Fixed it for you.
Being Gay is a choice. You are not born with a gene that makes you gay.
God did not provide a man for Adam’s partner he provided a woman. Saying that gays are a class of people is in a way a great insult to all Women.
Women can give life and nourish life but not without Man. Satan has many ways to convince us to sin and making a gay choice is one of them. The United States is now in the hands of the Evil One and we are standing by letting it sink lower and lower. Homosexuality, Co-habitation, Abortion, and Lust are at the top of the list. What will you do to set things right?
Stand up for GOD and do it now….....
I am 100% against homosexual marriage on the grounds that it is a violation of God’s natural law. That being said, I just don’t see how this can stand up to a Constitutional challenge. Someone please enlighten me.
Raum conveniently forgets that Arizona voters defeated a measure in 2006 to ban all recognition of Same-sex partnerships. They had to come back in 2008 for a kinder, gentler hate act to get the voters to pass their measure.
If the ADF is allowed do-overs, then so can Olson and Boies.
It is tiring to read commentary on both sides which misses the point or is vitriolic. Marriage is not a “civil right” and calling this a rights issue confuses the issue. States have many valid restrictions on who can enter into a marriage contract, including, for example, the bride’s and groom’s ages and the nearness of their blood relationship (i.e. first cousins cannot marry), and no one claims these are civil rights violations. Marriage is a specific type of relationship recognized by the state and society for the procreation and protection of children. It is self-evident that same sex couples lack even the possibility to fulfill this function and are thus are simply not capable of being married.
gay couples happen when they are rejected by the opposite sex at a very early age.
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