- - Thursday, November 29, 2012

If the Supreme Court fails to hear Hollingsworth v. Perry, also known as the Proposition 8 case, it will be approving injustice.

In 2008, the California Supreme Court said the state’s constitution required marriage to be redefined to include homosexual couples. Later that year, the people of California pushed back, adding an amendment, Proposition 8, to the California Constitution, restoring the definition of marriage as the union of a man and a woman. In 2010, a federal trial court in San Francisco ruled that this definition violated the U.S. Constitution. He also concluded Proposition 8 was motivated by religious sentiment — essentially bigotry.

In 2012, two of three judges from the U.S. Court of Appeals for the 9th Circuit ruled Proposition 8 was unconstitutional because, since it reversed a court decision granting a new “right,” it must have been motivated by animus. Later that year, a majority of a larger panel of judges on that court declined to overturn this ruling.

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Thus, the right of the people of California to decide on this important issue was overturned by the state’s judiciary. Some additional detail on these developments adds helpful perspective.

For instance, that Proposition 8 resulted in “taking away” a court-created entitlement to marriage licenses is not the result of decisions of the people of California, but of the California Supreme Court. The court could easily have delayed the effective date of its decision until voters had weighed in on that decision through Proposition 8. The “problem” with Proposition 8 identified by the 9th Circuit as uniquely unconstitutional had nothing to do with the measure itself.

It’s also worth noting that today, the state of California offers all of the benefits of marriage to homosexual couples. It did so before Proposition 8, and the amendment has not altered that aspect of state law in any way.

Less well-known is that a large body of legal decisions, including very recent precedent in the European Court of Human Rights, has rejected the idea that constitutional or human rights norms require marriage to be redefined. The only other federal appeals court to address the validity of a state marriage amendment (the 8th Circuit ruling on Nebraska’s amendment) found no constitutional authority for a mandate to redefine marriage.

Also at stake is the issue of states’ rights. For the Supreme Court to refuse to take this case would turn a state issue into a federal one and invite federal court oversight into the question of marriage. The 9th Circuit’s ruling is that the U.S. Constitution mandates homosexual “marriage” in California. If the court lets the Proposition 8 decision stand, redefinition advocates will see the result as an invitation to challenge the laws of Oregon, Arizona and Idaho. They are already challenging the marriage laws of Hawaii and Nevada in federal court. If defining marriage as the union of a husband and wife violates the national Constitution in the western states, it must mean that it is unconstitutional in every state. The Supreme Court can easily prevent nationalization of the issue by making clear in the Proposition 8 case that the U.S. Constitution does not require any state to redefine marriage.

Taking a much longer view, marriage predates the state of California and the United States. It is a human institution appearing in nearly all cultures across time and geography. It has provided social status to the intimate relationship of a man and a woman in recognition that such a relationship can result in the creation of children. Children have always been at the center, not on the periphery, of the marriage institution. There is no evidence, not even a hint, that the social institution of marriage is an intergenerational, multicultural conspiracy to exclude targeted groups or to express atavistic hatreds.

With this perspective, analyzing the opinion adopted by the majority of the panel of the federal court of appeals, which the Supreme Court is deciding whether to review, brings some things into stark relief.

First, the explanation of voter animus adopted by the court of appeals majority (and the earlier trial court decision) for the passage of Proposition 8 is actually the least plausible explanation. California voters chose to retain the definition of marriage that has prevailed through recorded history.

Second, though that opinion claimed its result was required by the 14th Amendment (ratified in 1868) as “equal protection of the laws,” the judges could just as easily invoke the Bill of Attainder Clause or any random constitutional provision to serve the same end. Nothing in the text, history or any reasonable extrapolation supports the notion that the people of any state are mandated by the Constitution to accept a judicial redefinition of marriage.

From this vantage point, the Supreme Court would appear to have very little option but to take the case. To do otherwise would be to acquiesce in a fundamental miscarriage of justice.

It would mean impugning the motives and capacity for self-government of the people of one state, while inviting challenges to the marriage laws of every other state. Moreover, it would demonstrate cavalier indifference to the rule of law: the fundamental principle that duly enacted laws, not personal preferences (whether of judges, politicians or anyone else), ought to govern us.

William C. Duncan is the director of the Marriage Law Foundation, which filed an amicus brief in favor of the petition for certiorari in the Proposition 8 case.

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