WASHINGTON — Advocates for traditional marriage received a setback last week when a California district court judge ruled Proposition 8 — a 2008 ballot initiative that amended the California Constitution to prohibit the recognition of same-sex “marriages” — unconstitutional.
But legal experts and political activists that back Proposition 8 contend Judge Vaughn Walker’s opinion in Perry v. Schwarzenegger is based on flawed legal and factual findings that increase the probability it will be overturned on appeal.
The Ruling
Judge Walker ruled that Proposition 8 violated the “due process” and “equal protection” clauses of the 14th Amendment , but he temporarily stayed his own decision. Same-sex couples in the state may have to wait for an appellate court ruling. Ultimately, the appeals process could take the case to the Supreme Court.
Elements of Judge Walker’s opinion most likely to draw intense scrutiny by an appellate court include his characterization of the popular and religiously based belief in traditional marriage as “irrational” and “bigoted.” Conservative scholars also dispute an interpretation of legal precedent that approaches same-sex “marriage” as the natural evolution of legal marriage as it has long been understood and practiced.
“There are two broad legal issues: One is the ‘due process’ claim, and the second is the ‘equal protection’ issue,” noted Anthony Pugno, general counsel for ProtectMarriage.com, the coalition of California groups that support Proposition 8.
In his opinion, Judge Walker stated that “Proposition 8 cannot withstand any level of scrutiny under the equal protection clause.” He concluded that “[e]xcluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.”
According to Pugno, “The judge’s conclusion that it is irrational to believe that traditional marriage is different and special goes to the equal protection issue. This argument is vulnerable,” he suggested, “because it contradicts common sense.”
Editor’s note: This story was filed prior to the announcement that Judge Walker lifted his stay of his decision Aug. 12. According to The New York Times, he delayed implementation of the order to lift the stay until Aug. 18.
Fifty-two percent of California voters backed Proposition 8. Its supporters contend that Judge Walker’s lengthy opinion failed to prove his charge that their position was unreasonable.
Pugno believes that the other legal basis for decision — the due process claim —
is also vulnerable. “Judge Walker interpreted the fundamental right to marry to be gender neutral, which is contrary to our nation’s entire legal history and precedent,” he said.
During the two weeks that Judge Walker received testimony in Casey v. Schwarzenegger, the San Francisco courthouse provided a forum for a heated, often emotional debate over whether the legal challenge actually sought to establish a new right to same-sex “marriage” or broaden the scope of a right already protected under the Constitution.
Judge Walker’s opinion incorporated numerous findings of fact culled from the testimony of same-sex couples and expert witnesses called by the plaintiffs’ attorneys. That testimony spoke of the goodness of same-sex unions and the strong outcomes of children raised in such households.
After Judge Walker issued his opinion, Theodore Olson, the plaintiffs’ attorney, repeated the plaintiffs’ central argument: “We do not put the Bill of Rights to a vote.” In an interview on Fox News, the former solicitor general added that “the right to marriage is a fundamental right.”
Many liberal scholars agree with Olson. Andrew Koppelman, a professor at Northwestern University School of Law in Chicago, was among those who applauded Judge Walker’s opinion as well, argued.
Legal Minds Question Decision
But Ed Whelan of the Ethics and Public Policy Center, a Washington, D.C.-based research center, echoes the view of legal experts who believe the judge’s opinion will prove to be a significant hurdle for the plaintiffs during the appeals process. “No serious judge would defer to the purported factual findings that Walker concocts,” said Whelan.
Michael Moses, associate general counsel to the U.S. Conference of Catholic Bishops, went farther, questioning Judge Walker’s decision to base much of his opinion on findings of fact.
“The constitutionality of marriage understood as the union of one man and one woman is a question of law. It could be decided without a factual record,” said Moses. “What Judge Walker held, in effect, was that there was no rational basis for legislative classification that involves marriage understood as the union of one man and one woman. That is incorrect as a matter of law.”
Critics challenge Walker’s interpretation of legal precedent. They say that the fundamental right to marry, interpreted in interracial-marriage cases and polygamy cases, has always been understood to involve the right of a man and a woman to marry. Yet the judge cited these cases to bolster his conclusion that gender was a peripheral matter.
On to the 9th Circuit
Those who uphold the constitutionality of Proposition 8 believe their interpretation of legal precedent will ultimately be vindicated. But the field of constitutional law has become fractured by ideological divisions over gender and sexual orientation issues, and much depends on which appellate judges in the 9th Circuit will be randomly selected to review the case.
“Walker’s opinion is out of step with exiting Supreme Court precedent, but the 9th Circuit is divided and includes radical lefties and conservatives. So it will be a sensible decision or crazy decision,” said John Eastman, a professor of constitutional law at Chapman University Law School in Orange, Calif., who recently took a leave of absence to campaign for the GOP nomination for California attorney general, but lost his bid to Steve Cooley.
Maggie Gallagher, president of the National Organization for Marriage, an advocacy group that has played a key role in same-sex “marriage” battles throughout the country, predicts that if the 9th Circuit upholds Judge Walker’s decision, the move will fuel voters’ anger over judicial overreach.
“Even pro-gay ‘marriage’ legal scholars are expressing mounting reservations about Judge Walker’s very odd opinion, which reads more like an advocates’ brief than the words of a neutral referee,” said Gallagher.
Jonathan Rauch, the author of Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America (2003), confirmed that many homosexual activists fear a political backlash against “marriage equality” similar to the ongoing battle over Roe v. Wade.
“Sometimes the right answer for the courts is to step aside and let politics do its job,” Rauch observed in a recent New York Times op-ed.
Such concerns may lead liberal judges on the 9th Circuit to adopt a cautious approach to their task of judicial review. Meanwhile, Andrew Pugno of Protect Marriage.com waits for his next day in court, bolstered by an undimmed optimism.
“We are confident that the sensationalism of this show trial will pass and we will prevail under the law,” said Pugno. “The media coverage of the trial dealt with political and social arguments. But they won’t decide the legal argument.”
Joan Frawley Desmond writes from Chevy Chase, Maryland.
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The appeals will look only to the trial record. The defense essentially put on no defense. The judge eviscerated the nonsense facts put forward. Only Roberts, Scalia, and Thomas will support overturning the judge’s decision, and they would do it before hearing any arguments. Therefore, the U.S. Supreme Court will decline to hear the appeal so at least the other Circuit Courts of Appeal can support bigotry.
I pray the SCOTUS has more sense than this biased, black-robed tyrant and his garbage ruling. I pray for the restoration of our Constitutional republic and an end to judgocracy, and I pray for the triumph of true marriage.
BTW, you can’t be bigoted against a disordered condition and sinful behavior. I’m tired of hearing that. Homosexuality is not normal and homosexual behavior is a sin. Plain and simple.
Tom Hartman is correct about the need of a trial record setting forth a vigorous defense, which the Pro Prop8 peoples failed to do.
He is also correct about the need to do some Prop8 type things in other circuits so that a proper defense can be set forth.
He is wrong about Pro Prop8 people being bigots. Anti Prop8 people are illogical and destructive of both marriage and our culture.
A proper defense would be in part as follows:
Homosexuals can’t have sex like heterosexuals because the parts are different.
Marriage has by definition always been the commitment of a man and a woman (exclusively in all but polygamous societies and for life in all but those who practice divorce) with the right to those sexual acts which MAY, but NEED NOT necessarily, result in the conception of a child. Those acts, in a committed marriage only, in themselves, affect heterosexual parties in physical and physiological and psychological ways that acts between same sex partners cannot and this is true whether or not the acts result in a child.
These facts are written in human nature, are part of the law of nature and are the umbrella under which the Constitution was written and under which it should be interpreted.
Homosexuals are incapable of such natural marriage acts and that is why they should not be allowed to pretend in the name of Equal Protection.
To Fight Gay ‘Marriage’ We Need to Underline That Arguments for Gay ‘Marriage’ Can Be Used By Polygamy ( and other forms of marriage) Supporters
To fight the legalization of gay marriage, we need to point out that arguments used by gay ‘marriage’ supporters can be used by polygamy (and other forms of ‘marriage’) supporters. This will raise the issue of arbitrariness of arguments used by gay ‘marriage’ supporters, and question why the same arguments is acceptable for gay marriage, but not for polygamy and others.
Gay ‘marriage’ supporters have made the main arguments as following:
“Society should allow people to marry if they are consenting adults and want to marry.” “People who oppose gay ‘marriage’ are bigots….they are homophobic and discriminating gays.” etc…
Problem with these arguments is: polygamy supporters (and supporters of any other form of ‘marriage’) can use the same arguments for legalization of their cause:
“Society should allow people to marry if they are consenting adults (in case that no minor is involved) and want to marry” “People who oppose polygamy are bigots….they are homophobic and discriminating polygamists.” ...etc…
Further, they would say: “If the issue of unnaturalness inherent in gay ‘marriage’ is not a problem, why is the issue of the number of partners in polygamy a problem?” Therefore, legalization of gay ‘marriage’ would force the society to legalize polygamy and other form of ‘marriage’ and thus destroy marriage itself, because supporters of polygamy and other form of ‘marriage’ would rightly point out UNEQUAL treatment and ARBITRARINESS.
One thing clear about marriage is that marriage is very restricted. Therefore, we don’t consider all form of sexual union such as one between siblings, between parent and a child, between multiple partners, and same sex partners, or between a human and an animal as marriage.
To Fight Gay ‘Marriage’ We Need to Underline That Arguments for Gay ‘Marriage’ Can Be Used By Polygamy ( and other forms of marriage) Supporters
To fight the legalization of gay marriage, we need to point out that arguments used by gay ‘marriage’ supporters can be used by polygamy (and other forms of ‘marriage’) supporters. This will raise the issue of arbitrariness of arguments used by gay ‘marriage’ supporters, and question why the same arguments is acceptable for gay marriage, but not for polygamy and others.
Gay ‘marriage’ supporters have made the main arguments as following:
“Society should allow people to marry if they are consenting adults and want to marry.” “People who oppose gay ‘marriage’ are bigots….they are homophobic and discriminating gays.” etc…
Problem with these arguments is: polygamy supporters (and supporters of any other form of ‘marriage’) can use the same arguments for legalization of their cause:
“Society should allow people to marry if they are consenting adults (in case that no minor is involved) and want to marry” “People who oppose polygamy are bigots….they are homophobic and discriminating polygamists.” ...etc…
Further, they would say: “If the issue of unnaturalness inherent in gay ‘marriage’ is not a problem, why is the issue of the number of partners in polygamy a problem?” Therefore, legalization of gay ‘marriage’ would force the society to legalize polygamy and other form of ‘marriage’ and thus destroy marriage itself, because supporters of polygamy and other form of ‘marriage’ would rightly point out UNEQUAL treatment and ARBITRARINESS.
One thing clear about marriage is that marriage is very restricted. Therefore, we don’t consider all form of sexual union such as one between siblings, between parent and a child, between multiple partners, and same sex partners, or between a human and an animal as marriage.
“Is Opposing Polygamy Discrimination, Too?”
Gay ‘marriage’ supporters claim that we are discriminating gays when we oppose the legalization of gay ‘marriage’. My question for them is: Are we discriminating polygamists, too, because we oppose polygamy? Why is opposing gay ‘marriage’ discrimination while opposing polygamy is not? As these questions imply, support for gay marriage is based on ARBITRARINESS and a DOUBLE standard.
Arguments used by gay ‘marriage’ supporters can be used by polygamy (and other forms of ‘marriage’) supporters. This raises the issue of arbitrariness, questioning why the same arguments is acceptable for gay marriage, but not for polygamy (and other form of ‘marriage’).
Gay ‘marriage’ supporters have made main arguments as follow:
“Society should allow people to marry if they are consenting adults and want to marry.” “People who oppose gay ‘marriage’ are bigots….they are homophobic and discriminating gays.” etc…
One of problems with these arguments is: polygamy supporters (and supporters of any other form of ‘marriage’) can use the same arguments for legalization of their cause:
“Society should allow more than two people to marry if they are consenting adults (in case that no minor is involved) and want to marry” “People who oppose polygamy are bigots….they are homophobic and discriminating polygamists.” ...etc…
Further, they would say: “If the issue of unnaturalness inherent in gay ‘marriage’ is not a problem, why is the issue of the number of partners in polygamy a problem?” Therefore, legalization of gay ‘marriage’ would force the society to legalize polygamy and other form of ‘marriage’ and thus destroy marriage itself, because supporters of polygamy and other form of ‘marriage’ would rightly point out UNEQUAL treatment and ARBITRARINESS.
One thing clear about marriage is that marriage is very restricted. Therefore, we don’t consider all form of sexual union such as one between siblings, between parent and a child, between multiple partners, and same sex partners, or between a human and an animal as marriage.
Note: I am a non native speaker, and my English is not good. So, please, free to correct whatever you find appropriate so long as my intension is not changed. Thank you
According to Christ, only in a complementary relationship can a mature couple, a man and a woman, as husband and wife, become one body, one spirit in Love, creating a new Family, which is the essence of Marriage.
Religion is deemed immutable under the 1st Amendment of the United States constitution, but Walker took it upon himself to declare the constitutionally protected immutability of religion irrational and then he had the nerve to declare same sex relations immutable in its stead.
This is akin to condemning a person for using his thumbs while praising people for eating with their feet. To add insult to injury Walker then shamelessly declared unsubstantiated theory to be fact and substantiated facts to be theory.
Eastman said it right when he stated “this is an “Alice-in-wonderful” opinion where up is down.”
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