- - Tuesday, June 12, 2012

In 2008, a majority of Californians voted to approve an amendment affirming that marriage is between a man and a woman. The U.S. Court of Appeals for the 9th Circuit decided to strike down that amendment, nullifying the will of 7 million California voters. Earlier this month, the full 9th Circuit declined to review its flawed decision. But Californians deserve better. That’s why the legal team defending Proposition 8 in Perry v. Brown will be asking the U.S. Supreme Court to weigh in.

Californians indisputably are among the most open-handed in the nation in extending benefits to same-sex couples. But one could hardly gather that from the court’s Feb. 7 decision, which stated time and again that California voters - by seeking to reaffirm marriage as the union of one man and one woman under state law - acted for no reason other than their disapproval and condemnation of same-sex couples. This bold charge cannot withstand scrutiny.

History has shown that the people of California are ardent supporters of marriage. In 2000, they enacted Proposition 22, a statute that codified a timeless reality that has existed throughout civilization - that marriage is the union of one man and one woman. Yet the California Supreme Court, through its In re Marriage Cases decision, overturned the people’s unambiguous affirmation of marriage and forced them to accept a new definition of that institution.

But before the court’s decision to redefine marriage, the people already had set in motion the process to put Proposition 8 on the ballot. Consequently, the people restored the definition of marriage just months after the court’s ruling.

While committed to marriage, Californians clearly have not sought to “pass judgment on same-sex couples as people” or “send a message that gays and lesbians are of lesser worth,” as the 9th Circuit alleges. California was one of the first states to create laws extending comprehensive benefits to same-sex relationships, prohibiting “discrimination” on the basis of sexual preferences, and mandating the teaching of “LGBT history” in public schools. Yet despite all this, the 9th Circuit’s decision characterizes Californians as a disapproving and condemning people.

Building on this obviously flawed premise, the court concluded that Proposition 8, which simply restored history’s enduring understanding of marriage, is indistinguishable from a Colorado law that prohibited all state and municipal entities from creating any legal protection based on a person’s “sexual orientation.” In other words, the court couldn’t perceive a legal difference between a narrowly drawn law preserving marriage and the extremely broad Colorado measure that the U.S. Supreme Court struck down in Romer v. Evans.

As a strongly worded dissent accompanying the full 9th Circuit’s decision not to review the three-judge panel’s decision stated:

“Based on a two-judge majority’s gross misapplication of Romer v. Evans … we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia. … Even worse, we have overruled the will of 7 million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it.”

The Supreme Court remarked that the Colorado law was so sweeping and peculiar that it only could be characterized as foreign to our legal traditions. Proposition 8, on the other hand, is far from peculiar or novel. By codifying the law’s long-standing construct of marriage, it fits comfortably within our constitutional framework. Indeed, before the 9th Circuit’s decision in February, federal constitutional challenges to measures like Proposition 8 had been rejected by every appellate court to address them.

Anchored by its fallacious reasoning, the court reached the unprecedented conclusion that the state Supreme Court decision imposing a redefined understanding of marriage on Californians precluded the voters from restoring marriage to its timeless form. But if the court’s flawed analysis stands, Californians’ right to define, affirm and protect marriage would have been twice - and, quite possibly, perpetually - hijacked by the courts. The California electorate would be relegated to a powerless proletariat who, despite their sincere and repeated efforts to preserve marriage, cannot escape the oppressive hand of their judicial overseers.

This tyrannical result would have been avoided by a faithful application of constitutional principles and adherence to the (until now) unbroken line of appellate court precedent upholding the states’ right to affirm marriage under the federal Constitution. This handcuffing of the electorate is antithetical to our constitutional founding as a government of the people, by the people and for the people.

Brian Raum is senior counsel and head of marriage litigation for the Alliance Defense Fund (telladf.org) and is a member of the ProtectMarriage.com legal team defending the California marriage amendment in Perry v. Brown.

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