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Proposition 8, which restricts marriage in California to one man and one woman, was declared unconstitutional again, setting the stage for a possible U.S. Supreme Court challenge.
BY Sue Ellen Browder
SAN FRANCISCO — The organization defending the traditional definition of marriage in California is considering an appeal to the U.S. Supreme Court after a recent ruling by the Ninth Circuit Court of Appeals.
The Ninth Circuit ruled Feb. 7 that the 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 Circuit 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 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.”
Sue Ellen Browder writes from Ukiah, California.