9th Circuit calls Proposition 8 unconstitutional

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A three-judge panel of the 9th U.S. Circuit Court of Appeals today ruled that Proposition 8, through which voters in California defined marriage in their state constitution as being between one man and one woman, is unconstitutional.

The 2-1 ruling upheld the district court decision by Judge Vaughn Walker, a homosexual who was in a position to benefit from his own decision.

The appeals court had heard arguments that the vote in 2008 by Californians should not be allowed to stand. Voters approved Proposition 8 shortly after the state?s Supreme Court had tried to mandate homosexual ?marriage.?

Jimmy Carter-appointee Stephen Reinhardt and Bill Clinton-appointee Michael Hawkins joined in the majority opinion. Randy Smith, appointed by George W. Bush, dissented.

The case arose when two same-sex duos challenged the state constitutional provision that limited marriage to one man and one woman.

The case now could be appealed to the full panel of the 9th Circuit and ultimately the U.S. Supreme Court.

Homosexual ?marriage? promoters were gleeful.

?We look forward to the day when all couples throughout Missouri and the U.S. are free to marry whomever they love,? said a statement from A.J. Bockelman of PROMO, an advocacy organization in Missouri for alternative sexual lifestyles.

The 2-1 decision found: ?Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason [for Proposition 8].?

Voters in the state with a 52 percent majority adopted Proposition 8 in 2008. The vote came only months after the state Supreme Court decided to impose same-sex ?marriage? by killing state statutes that limited marriage to a man and a woman.

Senior Counsel Brian Raum of the Alliance Defense Fund, which argued for the traditional definition of marriage, said the ruling from the 9th Circuit was not a surprise.

Read the opinion

?No court should presume to redefine marriage. No court should undercut the democratic process by taking the power to preserve marriage out of the hands of the people. Americans overwhelmingly reject the idea of changing the definition of marriage. Sixty-three million Americans in 31 state elections have voted on marriage, and 63 percent voted to preserve marriage as the timeless, universal, unique union between husband and wife,? he said.

?We are not surprised that this Hollywood-orchestrated attack on marriage ? tried in San Francisco ? turned out this way. But we are confident that the expressed will of the American people in favor of marriage will be upheld at the Supreme Court,? he continued.

?Every pro-marriage American should be pleased that this case can finally go to the U.S. Supreme Court. The ProtectMarriage.com legal team?s arguments align with every other federal appellate and Supreme Court decision on marriage in American history.?

While Gov. Jerry Brown applauded the ?wisdom? of the decision, longtime pro-family leader Randy Thomasson of SaveCalifornia.com said voters in the state twice already have affirmed marriage as an institution created by God between man and woman.

?The 9th Circuit ruling to strike down man-woman marriage, by a Carter judge and a Clinton judge, is unfair to the voters, against our republic, against our democratic system, against the United States Constitution, against nature, and against God and His beneficial design of family,? he said.

?It?s illogical and unconstitutional to claim that natural, unchangeable race and ethnicity is the same as sexual behavior. That?s not fair or true. Race and ethnicity are inherited, but science has never found homosexuality, bisexuality, or transsexuality to be inherited or unchangeable. Neither is this about commitment. As the divorce of leading anti-Prop. 8 lesbians Robin Tyler and Diane Olson demonstrates, the notion of homosexual ?marriage? is not really about ?commitment,? but is a political agenda forcing acceptance of homosexuality upon the children of America. Yet nothing is equal to marriage between a man and a woman. If you don?t have a man and a woman, you don?t have marriage.?

He said ?activists? like Reinhardt and Hawkins ?need to be reined in like Newt Gingrich has been saying about judicial activists. Marriage is not in the United States Constitution, so this case should never have gone to federal court. Now it will be appealed to the nation?s high court, with Anthony Kennedy being the deciding vote. Fortunately, in past rulings favoring homosexuality, Kennedy has written against redefining marriage, making it likely that he will affirm California?s right to reserve marriage licenses for ?a man and a woman.??

Reinhardt, who wrote the opinion, couched it in terms most favorable to the homosexual activists. He noted that before Nov. 4, 2008, the state constitution granted the right to marry to both same-sex and opposite-sex couples.

But that ?right? had existed for only a few months, and not before during the more than a century of the state?s history.

The decision specifically was not addressed to the ?broader question? of whether same-sex ?marriage? should be the standard nationwide, instead addressing Proposition 8 alone.

Reinhardt also explained that the right to marry is guaranteed to same-sex couples under the Due Process Clause. He said Prop 8 also violates Equal Protection.

He also said that the word ?marriage? is important, because the state in other terms grants same-sex duos a wide range of ?marriage? rights.

?A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ?registered domestic partnership? does not,? he said.

He also relied on some far-reaching assumptions propounded by Walker, who said, among other things, ?Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.?

In a separate opinion, Smith wrote that states have the right to adopt such definitions.

He cited a Supreme Court opinion, Baker V. Nelson, where two men were denied a marriage license in Minnesota, sued and ultimately saw their complaint dismissed by the Supremes.

?The United States Supreme Court has not recognized that the fundamental right to marry includes a fundamental right to gay marriage,? he wrote. ?Gays and lesbians are not a suspect or quasi-suspect class.?

Mathew Staver of Liberty Counsel said, ?The court was clearly wrong in finding that there are no rational arguments to support limiting the name ?marriage? to opposite-sex couples. Surely California can limit the name ?marriage? to opposite-sex couples, even in the face of its broad domestic partnership law.?

At the Advocates for Faith and Freedom, Jennifer Monk, associate general counsel, said it is important for the people of California to ?have their vote respected.?

The Family Research Council?s Tony Perkins said the ruling was disappointing.

?This ruling substitutes judicial tyranny for the will of the people, who in the majority of states have amended their constitutions, as California did, to preserve marriage as the union of one man and one woman,? he said. ?However, we remain confident that in the end, the Supreme Court will reject the absurd argument that the authors of our Constitution created or even implied a ?right? to homosexual ?marriage,? and will instead uphold the right of the people to govern themselves.?

Since Walker?s ruling, a campaign has been launched calling on members of Congress to defend marriage between one man and one woman as the foundation of civilization.

The effort is being championed by Kenneth L. Hutcherson, senior pastor and co-founder of Antioch Bible Church in Kirkland, Wash., who recently wrote in a column on WND saying the defense of marriage ?is a movement I would be willing to lead.?

The ?TIME TO DEFEND MARRIAGE: The Genesis 2:24 Campaign? is named after the earliest scriptural teaching on marriage. It enables constituents to send letters to all 535 members of the U.S. House of Representatives, encouraging them to prevent the societal consequences of caving in to the demands of homosexuals who insist the rest of society affirm their same-sex ?marriages.?

?Let?s be clear:? the letter tells members of Congress. ?What we?re talking about is the federal government?s de facto imposition, on all 50 states, of a radical redefinition of marriage for the first time in more than 5,000 years ? just to indulge the questionable demands of a miniscule segment of our population.

?Yet, who can deny that such frivolous experimentation with a foundational societal institution like marriage will inevitably result in serious, long-term ramifications to society as a whole? Loss of religious liberties of the vast majority of Americans as well as the complete breakdown of the family as we know it are just part of the fallout that will result,? it says.

In Canada, arguments already are being made in courts that since government prohibitions on same-sex ?marriage? have been removed, so should bans on polygamy. A California Supreme Court justice warned of such developments when his court, over his objections, created same-sex ?marriage? in the state.

The campaign was launched after Barack Obama and attorney general Eric Holder said they would refuse to fulfill their obligations to defend the federal Defense of Marriage Act when it is challenged in court.

Critics of the judge noted that there were several other circumstances, too, in which Walker?s behavior was described as anomalous:

• ?Before the trial even began, the 9th Circuit issued an extraordinary write of mandamus to overturn Chief Judge Walker?s order requiring proponents to turn over confidential internal communications??
• ?Also before the trial ? the Supreme Court of the United States issued an emergency stay ? enjoining Chief Judge Walker from video recording and disseminating the trial proceedings??
• ?Walker?s decision recognizing a right under the Federal Constitution for same-sex couples to have their relationships recognized as marriages conflicts with the judgment of every State and federal appellate court to consider the validity of the traditional opposite-sex definition of marriage. ??
• Walker peremptorily held that gays and lesbians are a suspect class ? even though all 11 Circuit Courts of Appeals ? have repeatedly and squarely held to the contrary.?
• ?Walker refused to stay his judgment pending appeal. As a result, the 9th Circuit was forced to issue such a stay.?

WND reported earlier when two analysts contended that the judge?s actions irreparably tainted the case.

?He is either a direct beneficiary of his ruling in the case, or a person with a close-enough personal interest in the case that his impartiality might reasonably have been questioned,? wrote John C. Eastman, the Henry Salvatori Professor of Law & Community Service and a former dean at Chapman University School of Law.

?Not his sexual orientation, which alone would not require recusal, but the possibility that he could directly benefit from his ruling, raised the prospect that recusal may have been warranted,? he wrote in a San Francisco newspaper blog. ?If the relationship was such that it gave Walker a financial or other interest in the outcome of the proceeding ? and the ability to marry would certainly qualify ? recusal would be mandatory and nonwaivable.?

Also concerned was J. Matt Barber, vice president of Liberty Counsel Action and associate dean at Liberty University School of Law.

?Back in February of 2010 after it became rumored that Judge Vaughn Walker is a practitioner of the homosexual lifestyle and that he has a long-term male lover, I was one of the few people to call for his recusal,? he told WND. ?With Judge Walker?s recent admission that he does in fact practice homosexuality, I?ve been proven right. His ruling on the Prop 8 case should be immediately vacated.?

Barber explained that federal law is very clear in that the code of judicial conduct demands a judge remove himself if ?the judge?s impartiality might reasonably be questioned? or when he ?has a financial ? or any other interest that could be affected substantially by the outcome of the proceeding.?

?By manufacturing from thin air a constitutional ?right? to same-sex ?marriage,? Judge Walker used his position on the bench to create for himself a new privilege that he previously did not have. It?s undeniable that he had an ?interest that could be affected substantially by the outcome of the proceeding,?? Barber said.

Walker?s 136-page ruling said, ?Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.?

In his ruling, Walker also arrived at the following highly controversial legal findings:

• ?Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.?
• ?Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.?
• ?The gender of a child?s parent is not a factor in a child?s adjustment.?
• ?The evidence shows beyond any doubt that parents? genders are irrelevant to children?s developmental outcomes.?
• ?Gender no longer forms an essential part of marriage; marriage under law is a union of equals.?
• ?Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples.?

His decision essentially ignored a warning from California Supreme Court Justice Marvin Baxter, who dissented when his court created same-sex ?marriage? in the state.

Baxter wrote, ?The bans on incestuous and polygamous marriages are ancient and deeprooted, and, as the majority suggests, they are supported by strong considerations of social policy. Our society abhors such relationships, and the notion that our laws could not forever prohibit them seems preposterous. Yet here, the majority overturns, in abrupt fashion, an initiative statute confirming the equally deeprooted assumption that marriage is a union of partners of the opposite sex. The majority does so by relying on its own assessment of contemporary community values, and by inserting in our Constitution an expanded definition of the right to marry that contravenes express statutory law.

?Who can say that, in 10, 15 or 20 years, an activist court might not rely on the majority?s analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?? Baxter wrote.

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Source: http://mobile.wnd.com/2012/02/9th-circuit-calls-proposition-8-unconstitutional/

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