Prop 8 Update

The debate over marriage can be simplified by one question? Who decides the definition of marriage—the electorate, or a few people in black robes?

In the case of marriage, no state court in the United States had ever found a “right” to same-sex marriage until the Massachusetts Supreme Court found it in 2003. Then California’s State Supreme Court found the right in 2008, and the Iowa Supreme Court in 2009. Currently seven states allow same-sex marriage, and in all seven it has been imposed by either judges or the legislature. When put to a vote of the people, 31 states have voted on the definition of marriage, and the score is 31-0 in favor of marriage being one man and one woman.

Shouldn’t states be allowed to set their own social policy? Of course. But when voters in California did so in 2000, approving Proposition 22 (“Only marriage between a man and a woman is valid or recognized in California”) with over 61% of the votes. But Prop 22 was challenged in court, and in a 4-3 ruling, the California Supreme Court’s majority decided it knew better than the electorate, and imposed same-sex marriage despite the clear will of the people to the contrary. The Court’s reasoning was that that certain lofty concepts in the State Constitution, such as equal protection, demanded re-defining marriage to include homosexual couples.

How can the will of the people ever trump a four-judge majority of the State Supreme Court? By amending the state Constitution. Those favoring natural marriage, even before the 4-3 ruling in May 2008 imposing same-sex marriage on California, signed petitions to get the issue on the ballot, again. Only this time the wording “Only marriage between a man and a woman is valid or recognized in California” would be enshrined in the California Constitution if approved by the voters. The initiative, known as “Proposition 8,” passed, with over seven million Californians voting for Prop 8, and in an election year where Sen. Barack Obama swept California on his way to being elected President of the United States.

After it was passed, Proposition 8 was challenged in the courts. Those who favored same-sex marriage couldn’t challenge the vote count that affirmed Californians want marriage to be one man and one woman, so they made technical arguments about Prop 8 not being a proper initiative, and should therefore be stricken. The California Supreme Court upheld the propriety of Prop 8 in a 6-1 ruling, but allowed the 18,000 or so same-sex “marriages” that took place from June to November 2008 to be recognized.

That’s then end of the line, right? The people of California spoke as to how marriage should be defined, and the state Supreme Court finally upheld the will of the people as expressed in Prop 8. But never underestimate gay marriage supporters. The day the California Supreme Court declared Prop constitutional, two homosexual couples filed a lawsuit in federal court in California arguing that denying same-sex couples the right to marry violated the federal (United States) Constitution.

The case was assigned to Judge Vaughn Walker, who failed to disclose that he was a homosexual and was in a ten-year relationship with another man. The fact that Judge Walker could have benefited from his own ruling was evidence to many that he should have either recused himself from hearing the case, or at least disclosed his same-sex relationship. He did neither, and after a trial Judge Walker ruled that there is a right to same-sex marriage in the United States Constitution, and therefore he overturned, again, Prop 8.

Judge Walker’s ruling was appealed to the oft-reversed Ninth Circuit Court of Appeals, and the case, Perry v. Brown, was assigned to a three-judge panel. One of the judges on the panel, Stephen Reinhardt, is the most reversed judge in the history of the United States, and his wife was the head of the ALCU of Southern California for nearly 40 years.

One of the issues for the Ninth Circuit was whether anyone had standing to represent the people of California who voted for Prop 8. Why was this an issue? Because when the federal challenge was filed against Prop 8 then-governor, Arnold Schwarzenegger and then-attorney general Jerry Brown refused to defend the law (which was part of the Constitution of California, which they were both sworn to defend). The advocates of same-sex marriage tried to argue that no one had the right to step in and defend Prop 8 after the governor and attorney general refused, effectively denying the seven million who voted for Prop 8 from having a voice in opposing Judge Walker’s ruling, effectively giving a victory to supporters of same-sex marriage. The Ninth Circuit panel sent the issue of standing back to the California Supreme Court, which ruled unanimously that the proponents of Prop 8 could represent the law in the federal appeal.

On February 7, 2012, the Ninth Circuit, by a 2-1 vote, affirmed the ruling of Judge Walker that Prop 8 violated the U.S. Constitution. Only the majority did not decide the case like Judge Walker did. Judge Walker found a right to same-sex marriage in the United States Constitution (the first federal judge to ever do so, and a departure from the United States Supreme Court’s 1972 decision of Baker v. Nelson that held there is no right to same-sex marriage in the U.S. Constitution). The Ninth Circuit panel, however, clearly stated that they were not resolving the issue of whether the right to gay marriage is in the U.S. Constitution. Instead, the panel decided the issue by finding that same-sex couples had a right to marry in California, and Prop 8 took that right away without any rational basis, which made the law unconstitutional.

The Ninth Circuit opinion skims over the fact that the “right” to same-sex marriage was imposed by a 4-3 vote of the California Supreme Court, and the court-imposed “right” was only in effect for 143 days, until

Prop 8 was passed in November 2008. Further, the Ninth Circuit acknowledged that Prop 8 would be constitutional if any rational basis existed for the law promoting any legitimate government interest. The court found no rational basis for Prop 8, essentially saying that the law was rooted solely in hatred toward homosexuals. In short, the more than seven million Californians who voted for Proposition 8 were merely bigoted, since the court found that keeping marriage between a man and woman has no benefit to society whatsoever. The panel disregarded several rational reasons for natural marriage that promote legitimate government interests, such as optimal parenting and responsible procreation, reasons other courts have found to be rational bases for laws (e.g., Citizens for Equal Protection v. Brunig, 8^th Circuit, 2006).

The proponents of Prop 8, who fought for Prop 22 and lost, who fought for Prop 8 before the California Supreme Court and won, who fought in federal district court and lost, who fought for standing before the Ninth Circuit and won, and who fought Judge Walker’s ruling before the Ninth Circuit and lost, now has a choice: either ask for an en banc hearing, in which a broader panel of the Ninth Circuit would review the 2-1 ruling of the panel affirming the district court’s overturning of Prop 8, or appeal directly to the U.S. Supreme Court.

There is currently a federal court challenge to the Defense of Marriage Act (“DOMA”), a law passed by Congress and signed into law by President Clinton that allows states to refuse to recognize same-sex marriages from other states, allows no recognition of same-sex marriages under federal law. Either or both the DOMA challenge and the Prop 8 (Perry) case could end up before the U.S. Supreme Court to resolve the issue of whether there is a right to same-sex marriage in the U.S. Constitution. Most court-watchers speculate that the U.S. Supreme court is divided 4-4 on the marriage issue, with Justice Anthony Kennedy being the swing vote. Whether true or not, soon the High Court will accept a case that will address the question of a “right” to same-sex marriage under the U.S. Constitution, and its decision will likely affect not only those seven states that currently allow gay marriage, but also the 43 states that do not allow same-sex marriage. But just like the Prop 8 issue in California, the question remains: Who decides the definition of marriage—the electorate, or a few people in black robes?