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.
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Unlike traditional marriage which licenses M/F relationships and is in line with our society’s belief that the mixing of the sexes is a social good, SSM licenses M/M-F/F relationships which separates the sexes. This institutional separation of the sexes is contrary to the social policies and institutions we have that mix the sexes. In fact the LGBT community is advocating no change in any other social policy or institution that mixes the sexes. They would even contend that there would be no motive that would justify an exemption on the mixing of the sexes (exemptions are justified on psychological grounds, but I state the obvious) EXCEPT their preference.
The criteria for marriage has been the “hard” criteria of age, gender, kinship. The govt has been unconcerned about the motives surrounding marriage. Couples may personally consider “love” to be a necessity for marriage but the govt doesn’t. By introducing a “soft” criteria like orientation the gate is opened wide for other “orientations” & motives.
There are other issues to consider but these two are a good start.
I don’t think Prop 8 will stand as law. The defenders of Prop 8 proved
one think clearly: they have no case. They could not prove the harm that
extending civil marriage rights to homosexual’s would cause. When
pressed on this issue by Judge Walker, Charles Cooper lead attorney
in the Prop 8 case, answered “Your honor I don’t know, I don’t know” and quickly added ” you don’t need evidence for this, it’s common sense.”
My point is homosexuals had the right to marry and that right was taken
away. This was the second time in California’s history that a right
was taken away by popular vote. The first time was Proposition 14 in
1964 which eliminated the Rumford Fair Housing passed by the Caifornia
legislature in 1963. Proposition 14 passed with 65% of the vote but was
eventually overturned in court in 1966 and affirmed by the U.S. Supreme
Court. I would make the argument that both propositions are wicked laws
that seek to strip any rights of a minority. Ignorance and hate are
forever busy and need feeding. No matter how many times you hold up a
mirror to bigotry, bigotry will refuse to see it’s own image. To take
the rights of any minority that has been historically discriminated against and puts those rights up for the vote of the majority responsible
for that discrimination is wicked. We need to stop scape goating
people in this manner.
Frank, I recognize in your comments the popular but flawed narrative that the defenders of Prop 8 had no case. Nothing could be further from the truth. As Ed Whelan amply demonstrates here: http://www.eppc.org/news/newsID.4264/news_detail.asp
Please take a moment and read this brief.
Gerry: Tautology will never replace reason.
Frank, The claim of “Tautology” is no counter to a fact based and well reasoned brief of the kind Mr. Whelan produced. A “short-cut” in argumentation usually produces a “short-circuit” in reasoning.
Mr.Whelan’s argument’s are not in question here, but rather the arguments of Charles Cooper and his legal team are. Why do you suppose they have gone to great lengths to keep the tapes of this trial from being made
available to the public? Mr. Cooper is a great attorney and an ardent
conservative. He was the lead attorney in the Citizens United case
and 15 years ago he led the fight against ending marriage discrimination
in the state of Hawaii. I beg to differ with you- the very essence of
perpetuating marriage equality is based on tautolgy. You like Ed Whelan,
very well, but the arguments avanced by legal writer Andrew Cohen regarding Propmake far more sense to me because its based on the reality of courtroom evidence. I like reality. The recent en blanc approach by the proponentsof Prop 8 will succeed in stalling the case even further, but eventually they will have to ride what amounts to a lame horse all
the way to the Supreme Court. Meanwhile DOMA in likewise failing in the
Federal Court system. DOMA is another wicked law as well.
Gerry,
Tautology is not my claim but that of Ted Olson, the former Solicitor
General of the United States under George W. Bush. In any event only
time can tell which of our opinions will prevail. Mr. Whelan has
said openly that Ted Olson is a “traitor” to the conservative cause. I
say Mr. Olson is great champion of the conservative cause by standing up for individual rights.
Even if it takes another decade or more eventualy the Prop 8 trial videos
will be made available to the pubic. Why is it do you think ( and I can cite my sources on this that 83% of self-identified jewish voters in CA
voted AGAINST Prop 8? More than likely because they know bigotry in all
its guises. (“Proposition 8 : What Happended and Where do We Go from Here?” funded by the Evelyn and Walter Haas Foundation.) its on the web in PDF format. Legal Writer Andrew Cohen takes a position opposite to
Ed whelan. Cohen commented on the Prop 8 case for Politcs Daily (also
on the web.) Time will tell.
Whelan simply puts Cooper’s arguments in their proper context to refute the fabricated narrative by Olsen’s team. Their declared reason for keeping the tapes private is the same reason SCOTUS forbade Walker to broadcast the trial in the first place. To protect the witnesses and create a “chilling effect” on Speech.
As you do I like reality. So let us consider a piece of reality from my first comment:
Licensing M/M-F/F relationships creates an institutional separation of the sexes. Reality?
Licensing M/F relationships creates an institutional mixing of the sexes. Reality?
Our society has decided it is a social good that the sexes mix not only personally but also in our social institutions. Reality?
The GLBT community thinks that as well since marriage is the only social institution they want to redefine to allow the segregation of the sexes. Reality?
Gerry:
There is no need to “protect” the witnesses for the upholding of Prop
8 since those same witnesses made the case for the opponents of Prop 8
quite handily. Take for example the testimony of David Blakenhorn, who was the closet thing the proponents had to an “expert” witness. Did you
read the decision, did you review the transcripts? I have. I also
know several people who attended the trial, including Rick Jacobs
of the Courage Campaign. I have heard personal accounts of what went
occured in court. William Tam’‘s and David Blakenhorn’s testimonies were
absolutely eviscerated by David Boie’s cross-examination. Ed Whelan
can write all he wants but what occured in the courtroom was that fear
and prejudice was placed on trial and fear and prejudice lost. It reminds
me of the Scopes v. Tennesee trial in 1925 (Scopes monkey trial) made
into the 1961 film “Inherit the Wind” with Spencer Tracy in the Clarence Darrow role. Ed Whelan or no Ed Whelan prop 8 will be undone.
“In fact, May said, ‘The voters of California know that marriage is much more than [a committed relationship for the benefit of adults]. 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.’ Seriously? What about heterosexual couples who cannot have children (either due to infertility issues, age, or health complications)? I guess, by definition, their marriages also boil down to “a committed relationship for the benefit of adults.” It’s time that the Catholic church learned that they do not possess the one and only definition of marriage. Maybe if you spent less time being intolerant of others and redirected that energy into helping others, you might actually be able to do some good on this earth.
Athenian_oracle
Marriage is a license from the State. It is permission to do something that has benefits and responsibilities tied to it. In a very specific way it is like (but not identical to) a fishing license. The state doesn’t make a requirement of a fishing license that a person actually catch fish but that doesn’t mean the license isn’t about fish!
In the same way a marital couple may not be able to have children but that doesn’t mean the marital license isn’t about children. For while couples many not bear children, Man do they try! ;-)
Frank, I noticed you didn’t answer any of my questions. Is that any way to dialog?
In no sense does what the California court did can be considered granting or discovering a “right” (under the US constitution).
Where it is recognized in law that there is a right to something,then any hindrance to that right
must hinge in the recognition of of an objective characteristic-say, race and/or gender(not sexual orientation).
This is because a unmarried person, if it were to benefit the person to do so,could claim to be homosexual
even when that person was in fact not.
Anything that is not a right in that sense is subject to the will of the people or their representatives in any particular jurisdiction.
This includes same sex marriage. If one of the legal instruments to regulate or define(under state law) is a public referendum. then so be it.
George - what you wrote makes absolutely no sense. Might I suggest you have your posts proof-read for comprehensibility prior to clicking the ‘submit’ button?
Hey Frank, so you say minority will always be discriminated no matter what. I get it.. I do….
so where do you draw the LINE?
Incestuous individuals have the capability to make an informed decision to want to marry their siblings… they are a minority.. YES? or NO?
Polygamous people are also a minority, and they wish to marry their multiple partners… who are also capable of rendering an informed decision… YES OR NO?
ADULT Pedophiles seek to remove age-restriction laws on marriage so they can establish physical, sexual and marital relationships with little boys and girls…. In this day and age, little American boys and little American girls have been seen to make an informed, indirect decision on their own…. and the Pedophiles are a minority compared to the general public… YES or NO? Do we allow?
Where do you draw the line. Your logic is FLAWED. Go to confession…. the Devil is burning your soul in Hell right this very moment. Self-asserting-American-Fake-Catholic-Disobedient-trolling-m0r0n.
I won’t bring Bestiality here.
SO where do we draw the LINE? or Do we even draw one for the sake of pleasing heretics, agnostics, atheists and other immoral people?
Graham - the fact that you would put incest and paedophilia in the same category as homosexuality is appalling. Personally, I think that evidence more strongly links paedophilia with Catholicism. Oh, and stooping to name calling (e.g. “m0r0n”) just goes to show how hateful and intellectually limited you are.
Strangely funny when many of prop 8 defenders keep claiming that Judge Walker and judge Reinhardt are ruling the case based on personal preference rather than direct interpretation of the law, citing
Quote “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” and “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.” End Quote
At the same time, they expect Supreme Court judges to use their personal preference and vote to upheld prop 8 because they practicing Catholicism?
In my understanding that US constitution guarantees religion freedom and prohibits religion discrimination, it allows peoples to worship any faith and/or religion they like and at the same time doesn’t not allow any specific religion(s) to dictate the laws of the land. Effectively it doesn’t allow religion’s belief to become a factor of making the law. Think about if Catholic Church prohibit consumption of meat (like Islam prohibits consumption of pork), and peoples want to amend the constitution to make them illegal across the states or country? What’s the difference from prop 8? What is the rational? Why Catholic Church’s teaching is superior from other? is that the religious discrimination?
Since the first inception of this country, the declaration of independence explicitly say “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”. That is the foundation of the laws of the land. If same-sex couple would like to get married and share their life together in the pursuit of their happiness, let them be. Religion are civil and spiritual, not meant to be politic, and it should remains that way.
If we all agree that Judiciary’s duty is to interpret the intention of the laws and only that, I see no wrong with the decision handed by both Ninth Circuit and District Courts.
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