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Prop. 8 has been reargued in San Francisco. Is it on its way to becoming the Roe v. Wade of marriage?
BY SUE ELLEN BROWDER
SAN FRANCISCO — A case that could become the Roe v. Wade of marriage marched steadily along its course this week toward the U.S. Supreme Court.
In Monday’s televised proceedings before the U.S. 9th District Court of Appeals in San Francisco, marriage defense lawyers fought valiantly in their attempt to save the 2008 ballot-box initiative that defined marriage in California as the union between one man and one woman.
Challenged in court by two same-sex couples, the initiative known as Prop. 8 was struck down in August by Chief U.S. District Judge Vaughn Walker.
Walker held that the time when “the genders” were seen as having distinct roles in marriage “has passed.”
Theodore Olson and David Boies, the lawyers who are co-counsels fighting for same-sex “marriage,” argued before a three-judge panel on Monday that Walker’s decision should stand and not even be reviewed by a higher court.
Olson and Boies argued that “limiting” marriage to one man and one woman is discriminatory and violates the U.S. Constitution.
Charles Cooper, attorney for ProtectMarriage.com , argued that the voters of California had rational reasons for passing Prop. 8 and were not simply acting out of bigotry.
“All three 9th Circuit judges expressed concern over the argument that Walker’s decision should stand and the voters should have no recourse,” said National Organization for Marriage CEO Maggie Gallagher. “In that sense, I found what happened optimistic. Chuck Cooper was brilliant.”
“It was a good day in court” for pro-marriage forces, Gallagher added.
Even so, “we don’t expect to win [the case for traditional marriage] in the 9th Circuit,” said Charles LiMandri, general counsel for the National Organization for Marriage in California. “The 9th Circuit is the most liberal federal court bench in the country. If they’re philosophically predisposed against you, it doesn’t really matter how good your arguments are or how strong your legal precedent is. They do what they want to do.”
On the other hand, LiMandri said, “we predict that given the present make-up of the U.S. Supreme Court that we should win there 5-4.”
“We need to pray for the health of the current Supreme Court justices,” LiMandri added, “because if President Barack Obama gets to make another appointment [to the Supreme Court] it can change the whole dynamic.”
Arguments in the 9th Circuit centered around two issues.
The first was whether ProtectMarriage.com, which pushed for the passage of Prop. 8, has the legal standing to defend the voters of California. Gov. Arnold Schwarzenegger and state Attorney General Jerry Brown (elected governor in November’s election) had refused to defend Prop. 8 in court. So ProtectMarriage.com took up the baton.
The second issue focused on the merits of the case and Walker’s contention that voters had no rational reason for passing Prop. 8.
“Once you get into the reasons in favor of marriage, we win hands down,” LiMandri said, “because we have known for decades that children do best with a mother and a father, preferably their biological parents.”
Calling the pro-marriage case “very, very strong,” LiMandri said, “the issue is whether the people of California had a rational reason for passing Prop. 8 and, if not, they were discriminatory and bigoted.”
An Urgent Question
Although optimistic about the ultimate outcome of this particular case, if and when it reaches the Supreme Court, Bill May of Catholics for the Common Good said, “The same-sex ‘marriage’ issue is just a symptom of a much bigger problem. We as Catholics have got to get engaged in a positive way and rebuild the marriage culture.”
May and other marriage defenders in California have long argued that the key issue driving all same-sex “marriage” cases today — an invisible factor most people overlook — is that there are now two conflicting definitions of marriage at play in our society.
“Those who support same-sex ‘marriage,’ including Judge Walker, believe that marriage is a committed relationship for the private interest of adults,” May said.
Those who support traditional marriage, in contrast, “know that marriage unites a man and a woman with each other and with any children that result from their union.”
“We’re on a course in this country for the total redefinition of marriage,” May warned. “And the most serious problem is that marriage has already been redefined in the minds of many, many young people.”
“If it isn’t this case, it’s going to be another case that redefines marriage for the whole country,” May said.
Los Angeles Times reporter Brian Powell pointed out in a Dec. 5 article that whatever the outcome of this case, same-sex “marriage” is steadily winning in the court of public opinion.
To fight this trend, Catholics for the Common Good is rallying the troops to defend marriage in the public square with a program called Stand With Children.
Last month, Archbishop Joseph Kurtz of Louisville, Ky., who was elected vice president of the U.S. Conference of Catholic Bishops, likened U.S. marriage laws today to U.S. laws on abortion in the period just before Roe v. Wade.
Emphasizing that we are presently in a situation where the Roe v. Wade of marriage could be about three years out, Archbishop Kurtz asked his brother bishops to ponder an important question with urgency: “If you saw Roe v. Wade coming three years out, what would you have done differently?”
It’s a question that many in the traditional marriage movement may be pondering these days.
Register correspondent Sue Ellin Browder writes from Ukiah, California.