Future of Marriage Law Murky as Prop. 8 Challenge Begins
BY SUE ELLIN BROWDER
January 31-February 13, 2010 Issue | Posted 1/25/10 at 5:01 AM
SAN 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 States.
That’s 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.
“This 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.
“If [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.”
The 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.
Although 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.
So 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 voters.
Joining 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
The 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.
In 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.
Thomas 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?
In 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.”
ProtectMarriage.com 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.”
During 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.
“It’s 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.”
In a Wall Street Journal opinion piece, Boies called the passage of Prop. 8 by California voters “the residue of centuries of figurative and literal gay-bashing.”
Religious Teachings on Marriage
In 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.”
He referred to Matthew 22:35-40, where Jesus declares that the two greatest commandments are to love God and neighbor.
In 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.”
Bishop 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.
“Children 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.”
He 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
The 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.
“We are going to win this case,” he told The Wall Street Journal.
But many believe the American Foundation for Equal Rights and its attorneys have miscalculated, especially on the Supreme Court level.
“History 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.
After 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 now.”
Further, 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.
LiMandri calculates there are enough votes on the current Supreme Court for traditional marriage to win.
As 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.”
“What 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’ favor.
Attorney 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.”
In 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.
Various homosexual activists have called the Perry suit “reckless” and “premature.”
But Nimocks called the timing “irrelevant.”
“The 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 ‘marriage.’”
The 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.
Sue Ellin Browder writes from Ukiah, California.
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