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A federal court began hearing oral arguments on the constitutionality of California’s marriage amendment. What’s at stake?
BY SUE ELLIN BROWDERREGISTER CORRESPONDENT
FRANCISCO — The outcome of a trial that opened Jan. 11 in a federal court in
San Francisco could determine the future of marriage in the entire United
the conviction of many closely connected with the Perry v. Schwarzenegger case, the second attempt in a year to strike
down California’s Proposition 8 marriage-defense amendment, which was passed by
7 million voters.
case will likely go all the way to the U.S. Supreme Court and could determine
the future of marriage for the whole country,” said Bill May, who chaired the
lay Catholic coalition supporting the ProtectMarriage.com campaign. That campaign
ushered Prop. 8 to victory on the November 2008 ballot.
[same-sex ‘marriage’ forces] win at the Supreme Court level, they will have
imposed a national right to gay ‘marriage’ in all 50 states,” said Maggie
Gallagher, president of the National Organization for Marriage. “That’s their
goal. That’s what they’re asking for.”
lawsuit was filed on behalf of two same-sex couples denied California marriage
licenses after the state’s Supreme Court upheld Prop. 8 as constitutional.
named as defendant in the suit, California Gov. Arnold Schwarzenegger declined
to defend Prop. 8 on the grounds that the legality of the measure is up for the
courts to decide.
ProtectMarriage.com took up the baton, petitioning the court to allow its legal
team to replace the governor and state attorney general and to represent the
forces to represent the same-sex couples for the American Foundation for Equal
Rights are star litigators Ted Olson and David Boies, the attorneys who opposed
each other in the 2000 Bush-Gore battle over electoral votes in Florida.
A Question of Cameras
big news in the trial’s first week was the U.S. Supreme Court’s reversal of the
U.S. District Court judge’s order to allow the proceedings to be televised and
broadcast at the end of each day on YouTube. It would have been the first-ever
television broadcast of a federal trial in process. Appealing to the U.S. Supreme
Court, attorneys for ProtectMarriage.com argued that allowing TV cameras in the
courtroom could do witnesses irreparable harm. They cited evidence that donors
to groups supporting Prop. 8 had been subjected to vandalism, physical violence
and even death threats by anti-Prop. 8 extremists.
a 5-4 ruling, the nation’s highest court overturned Judge Vaughn Walker’s order
on the grounds he had improperly cut corners to allow the transmission and
there would be no harm done if the trial were not broadcast.
More Law Center attorney Charles LiMandri, general counsel for the National
Organization for Marriage in California, suggested the language in the Supreme
Court’s decision indicates the justices “are getting the picture of what this
case is really all about: that homosexual-rights activists are trying to curb
religious freedom and people’s right not only to speak on these issues but to
vote on these issues.”
Christianity as a Form of Bigotry?
his opening remarks, Olson argued that the right to marry is a “basic civil
right” and a “component of the constitutional rights to liberty, privacy and
intimate choice.” He stated that Prop. 8 has created a “unique pattern of
discrimination” for which “there is no rational justification,” and that denying
same-sex couples the right to “marry” stigmatizes them, “classifies them as
outcasts, and causes needless pain, isolation and humiliation.”
general counsel Andy Pugno, on the other side, said Prop. 8 is not about
homosexuality, but “is solely and exclusively about the definition of marriage.
This case is about the right of 7 million California voters who reasonably
concluded that marriage should be between a man and a woman, plain and simple.”
the first week of the trial, examples of the Church’s magisterial teachings on
homosexual unions were put into evidence as examples of historical
“discrimination” against homosexuals.
very important for Catholics to understand that [the lawyers against Prop. 8]
view the Church’s doctrinal beliefs about homosexuality as evidence of
bigotry,” LiMandri said. “Their true colors are coming through in terms of
their own religious discrimination and antireligious bigotry in the way they’re
packaging the argument.”
a Wall Street Journal opinion piece, Boies called the passage of Prop.
8 by California voters “the residue of centuries of figurative and literal
Religious Teachings on Marriage
another piece in The Philadelphia
Enquirer, Boies wrote that “it
is argued that same-sex marriages are inconsistent with religious teachings. As
a Christian, I would disagree.”
referred to Matthew 22:35-40, where Jesus declares that the two greatest
commandments are to love God and neighbor.
response to that, Bishop Salvatore Cordileone of Oakland, Calif., said, “Every
Bible passage which refers to marriage presumes that it is the union of a man
and a woman. This is consistent with the understanding of marriage in every
human society since the beginning of the human race, without exception,
irrespective of how different societies throughout history have regarded sexual
activity between people of the same sex.”
Cordileone, who was active in the Prop. 8 campaign, said that all societies
have seen marriage as necessary for the procreation and upbringing of the next
generation of citizens.
naturally come from a father and mother, and it is in their and societies’ best
interest that they grow up with their father and mother in a stable, loving
relationship,” he said. “While this is not always possible, society, for its
own good as well as that of its children, should not intentionally deprive
children of this fundamental good.”
also pointed out that marriage is based on natural law, not religious teaching.
“Religious teaching builds upon it and deepens our understanding of it; it
never contradicts it or replaces it,” he said. “There are lots of different
kinds of human relationships, including the intimacy of friendship, but only
marriage has the status that it does in the law because of its unique role as a
human relationship which affects the public good. No other relationship, no
matter how laudatory, has that power. One does not have to be a believer to
understand that marriage can only exist between a man and a woman.”
Supreme Court Prospects
question remains as to the prospects for success of the challenge and a
possible appeal to the Supreme Court of the United States. Olson was confident.
are going to win this case,” he told The Wall
many believe the American Foundation for Equal Rights and its attorneys have
miscalculated, especially on the Supreme Court level.
says the odds at the Supreme Court now are not so good,” read a statement
issued last May by nine leading homosexual-activist groups, including the Human
Rights Campaign, Gay & Lesbian Advocates & Defenders and the American
Civil Liberties Union.
the California Supreme Court declared Prop. 8 constitutional, the groups warned
their followers that suing in a federal court is “a temptation we should
resist. It is by no means clear that a federal challenge to Prop. 8 can win
the leaders of the same-sex “marriage” movement cited “serious risks if we go
to the Supreme Court and lose,” one being that if the nation’s highest court
doesn’t support same-sex “marriage,” state courts will be less likely to do so.
calculates there are enough votes on the current Supreme Court for traditional
marriage to win.
the second week of the trial began, LiMandri said, “I’m not optimistic that
Judge Walker will make the right decision, but I am even more optimistic that
the Supreme Court eventually will.”
the other side wants is for more Supreme Court justices to retire and give
Barack Obama the opportunity to make additional appointments,” LiMandri said.
Obama could shift the balance of power on the court in same-sex “marriage” advocates’
Austin Nimocks of the Alliance Defense Fund, part of the ProtectMarriage.com
legal team, said the U.S. Supreme Court already decided the issue in 1972, “and
there’s no reason why it needs to be decided again.”
the 1972 Baker v.
Nelson decision, two men
demanded a marriage license. The Minnesota Supreme Court ruled state law
limited marriage to opposite-sex couples, and the U.S. Supreme Court dismissed
the appeal. “The Supreme Court justices agreed that there was no right for a
same-sex couple to acquire a marriage license, which is the exact issue in
California,” Nimocks said.
homosexual activists have called the Perry suit “reckless” and “premature.”
Nimocks called the timing “irrelevant.”
notion that it’s ‘premature’ assumes that there’s somehow a same-sex ‘marriage’
victory on this issue later down the road. And we absolutely don’t accept
that,” Nimocks said. “You know, 31 out of 31 states have voted on this issue
and have affirmed marriage as the union of one man and one woman. Americans are
very clear and unified on this point. There’s no reason to believe that there’s
a fundamental right in the U.S. Constitution to same-sex ‘marriage.’ There is
no place in time in American history — past, present or future — for same-sex
trial in San Francisco contrasts with decades of careful strategizing by
homosexual-activist groups, who have long favored a slow, incremental strategy
of mainstreaming homosexual behavior and legalizing same-sex “marriage.” The Perry
case is a high-stakes confrontation that many same-sex “marriage” advocates
fear could backfire and set back their agenda for decades.
Ellin Browder writes from Ukiah, California.