- The Washington Times - Wednesday, February 8, 2012

The U.S. Court of Appeals for the 9th Circuit just ruled that Proposition 8, California’s constitutional marriage amendment defining marriage as between one man and one woman, is unconstitutional. This decision is one of the most radical to come out of a circuit known for fringe rulings. It’s little wonder that this circuit is the nation’s most overturned.

The decision presents a clear example of judicial activism, in which you can see the court struggle to find the arguments to substantiate a predetermined decision. Neither law nor fact stood a chance before the judges.

To advance the cause, the 9th Circuit concludes that the only plausible explanation for Californians to want to define marriage as the union between one man and one woman is “the constitutionally illegitimate basis of animus toward” homosexuals. Every reasonable person knows this to be false. Many of us know supporters of traditional marriage in California, and we know they are not hostile toward homosexuals. They merely have an honest desire to preserve an institution that has served as the foundation of society for thousands of years.

The court’s generalization shows its true intent.

Supporters of traditional marriage provided many reasonable bases for preserving marriage as the union between one man and one woman, including two on which the dissenting judge focused in disagreeing with the majority:

(1) A responsible procreation theory, justifying the inducement of marital recognition only for opposite-sex couples, because it “steers procreation into marriage” and because opposite-sex couples are the only couples who can procreate children accidentally or irresponsibly, and (2) an optimal parenting theory, justifying the inducement of marital recognition only for opposite-sex couples because the family structure of two committed biological parents - one man and one woman - is the optimal partnership for raising children.

Of course, these are just two of the many other completely reasonable bases for Proposition 8. But again, blinded by their desire to advance the cause of “equality” and “tolerance,” the 9th Circuit judges seemed to twist and turn laws and facts until they fit. They simply dismissed these rationales by saying things like, “Proposition 8 had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California.”

The court conveniently chose to ignore the reason the state got involved in the business of marriage in the first place. The state gets involved in marriage only because it has an interest in promoting certain behavior. In the case of the unique relationship between one man and one woman, the state wants to encourage couples to rear children within the context of marriage, which offers the best chance for children to become productive members of society.

The court recognized the importance of the institution of marriage in our society, saying, for example, “We do not celebrate when two people merge their bank accounts; we celebrate when a couple marries.” It even made an attempt at humor by using Groucho Marx, Frank Sinatra and Marilyn Monroe, among others, to illustrate how revered the institution of marriage is. But the court still concluded that it is irrational for Californians to think that preserving marriage as the union between one man and one woman would encourage couples to marry so that their children could have that stability in their development.

If the court’s decision makes no sense to you, you are not alone. The 9th Circuit concocts a convoluted, delusional argument to make its decision somewhat sustainable, at least among the most radical readers. According to them, it is not the supporters of same-sex “marriage” who are redefining the word marriage, it is the supporters of traditional marriage who are doing so.

Yes, apparently same-sex “marriage” always had been recognized in California until those bigots enacted Proposition 8 on Nov. 4, 2008, “to eliminate the right of same-sex couples to marry,” for no other reason than hostility toward homosexuals.

This is the very dangerous path of judicial activists whose ideology has so blinded them that their reality morphs to fit their goals. It’s hard to win an argument against that.

Mario Diaz is legal counsel for Concerned Women for America.

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