Proposition 8: The Marriage Protectors Are Back In Court Again

Posted on 27 February 2012

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By Peter Schrag

There was little surprise in last week’s attempt of the marriage protectors to get a larger appellate panel to review the three-judge Ninth Circuit of Appeals decision overturning California’s gay marriage ban. They said from day one they were going to do something. Some shoe had to fall.

But how they’re arguing for it raises some curious questions.

The Ninth Circuit ruling, handed down earlier this month, was as much as anything an attempt to circumscribe its scope and thus make it a less tempting target for the conservatives on the U.S. Supreme Court, who like nothing better than to stick it to the libs on the left coast. The leading Ninth Circuit lib is Judge Stephen Reinhardt, who wrote the Proposition 8 decision.

Reinhardt, in his attempt to narrow the scope of his ruling, didn’t find a constitutional right to gay marriage. The court didn’t need to reach the larger question. Once a group had a right as gays did in California, he ruled, the state couldn’t abrogate it.  This was a decision made more or less for California alone.

The core of the self-styled marriage protectors’ petition for review is that Romer v. Evans, the 1996 Colorado case on which Reinhardt based much of his decision, didn’t apply. The Colorado law Romer struck down, they argued in their brief, was a broad-brush ban on any state or local law outlawing anti-gay discrimination. It did not take away just one specified right; it blocked protection for all gay rights.

Proposition 8, on the other hand, “does not single out a ‘named class’ for disparate treatment. Rather, it simply preserves the definition of marriage that has prevailed throughout human history.”

That in itself was a little odd, since much the same arguments could have been used in the 1960s in defense of laws outlawing inter-racial marriage (struck down by the U.S. Supreme Court in 1967) and in the 1950s in defense of Jim Crow laws. It could have been used for the retention of laws denying women the right to own property (or in fact to do anything without the consent of husband or father) or in defense of legal covenants in real estate deeds prohibiting property sales or rentals to Jews.

 Before fashions changed or courts struck down such laws, the list of groups who were targeted “throughout human history” for ostracism, exclusion or discrimination is as long as your arm.

It was fatuous for the Ninth Circuit’s 2-1 majority to contend, the petitioners in effect argued, that Proposition 8 took away a right that gays and lesbians already had. They had it, very briefly, by virtue of a narrow state Supreme Court decision, not through any legislative act.

“Proposition 8 had nothing to do with anti-gay animus,” the marriage protectors argue. “The animating purpose of marriage is bound up in the uniquely procreative nature of opposite-sex relationships, and it can be and is supported by countless people of good faith who harbor no ill will toward gays and lesbians and their relationships.”

And exactly what is it about that “uniquely procreative nature of opposite –sex relationships” that makes banning gay marriage a legitimate state interest?

Reinhardt contended that because California has a domestic partnership law granting same-sex couples all the rights extended to opposite-sex couples and imposing the same obligations – the right to hospital visitation, to adopt and raise children, to file joint state tax returns, to share community property, among others – Proposition 8 had no purpose other than “to lessen the status and human dignity of gays and lesbians in California.” That’s a hard one to argue with.

Maybe the whole point of the new appeal is part of a larger strategy: dare (or tempt) the Ninth Circuit en banc panel to find an unqualified equal protection right for gay marriage in the 14th Amendment. It’s what Vaughn Walker, the trial court judge, found when he overturned Proposition 8 with his uncompromising opinion some two years ago, and what Reinhardt is now doing contortions to avoid.

If a lower court does find a broader right to same-sex marriage in the Constitution, the Supreme Court would almost certainly have to take the case. The proponents of Proposition 8 would then be betting that, despite the uncertainty about Justice Anthony Kennedy’s swing vote, what was true “throughout human history” would continue (in some places) for a few years more.

But given the rapid changes in public opinion – and the ever-greater tolerance of the young about all sorts of social issues, gay and inter-racial marriage, abortion, immigration, drugs – it’s only a matter of time. The list of states granting marriage rights to single-sex couples grows by the day.

Still it’s pretty clear why the marriage protectors are doing what they’re doing. If it stands, the Proposition 8 decision can only encourage others and speed that process along. Which may be why, for a group that bases much of its argument on the initiative process, it’s strangely averse to letting the public see too much. It’s fought doggedly to keep the videos of the trial in Walker’s courtroom from becoming publicly available.

That may be because its two star witnesses simply couldn’t come up with any persuasive defenses of the gay marriage ban. Or it may simply be that the fear that anything that makes the issue more vivid and accessible can only speed the march to the inevitable.


Peter Schrag, whose exclusive weekly column appears every Monday in the California Progress Report, is the former editorial page editor and columnist of the Sacramento Bee. He is the author of Paradise Lost: California’s Experience, America’s Future and California: America’s High Stakes Experiment. His newest book, Not Fit for Our Society: Nativism, Eugenics, Immigration is now on sale.

Those who are against homosexuals attempting the impossible-- i.e., "marriage" have every right to continue urging their viewpoint. The author might be right that eventually such unions will be allowed; however, in the meantime those who want to restrict marriage to people of different sex, should not be ridiculed or dismissed as the author does.

LOL it's hard not to dismiss those with that viewpoint when they use phrases like "homosexual agenda" or even "homsexual agenda"

Always trying to impose their agenda upon everyone, like equality before the law, the right to privacy and the right to live your own life as you see fit. Why, next thing you know, women will demand the right to become doctors and lawyers and ... oh, wait. That's right, this isn't the 1960s anymore. Never mind.

My only problem is how cavalierly we throw away the results of elections. I have seen this in California again and again. If an election is against any aspect of the liberal agenda, there is alwasy some judicial intervention to invalidate the election. Honestly, why bother to vote? Your vote will not matter unless it is for the approved liberal law or candidate.

First of all, please list all these elections that have been WRONGLY overturned by the courts.

Second, the courts function is to prevent EXACTLY the kinds of bigoted laws like Prop 8. Check out the Constitution'll find that the founders were very cognizant that majorities can take away constitutional rights of minorities, unfairly, if the vote is the end all. That's why we're a Republic (or "constitutional democracy"), and not a direct democracy. Also, the earth is flat...but I'll stop there...I don't want to overload you with data.

They understood that in many cases either people lacking intelligence like you, or simply that were bigots, or just horribly misinformed, could in fact join together to make laws, like the abomination that is Prop 8 that clearly infringe on the constitutional rights of others.

While sadly, our courts have been stuffed with Federalist Society corporate hack dedicated to giving big business more power and people less - esp. minorities and the disenfranchised, thankfully the courts have, at times, served as a check to the ignorant masses (see picture of you), often pushed by a right wing that while loving to talk about the constitution actually loathe it (if even understand it).

So, turn off American Idol and check out the 14th Amendment in particular...oh hell, check out all of them...or, probably more likely, find someone to read it to you, or show you it in picture form.

Also, to avoid such future embarrassing posts, read Judge Walker's brilliant, point by point, logic laced ruling and you'll see as clear as day EXACTLY why Prop 8 is unconstitutional, and why the court functioned exactly how the founders intended it to when it overturned it.

But, I do encourage you - as an obvious knuckle dragger and detriment to society in general - to not bother to vote. You are ABSOLUTELY right about serve no purpose, and do no good, we do, on that, agree!

You are the classic liberal. Always attack those that disagree with you. Consider what you said, "people lacking intelligence like you, or simply that were bigots, or just horribly misinformed."

I suppose you have the right to be as unpleasant as you want. However, please don't give me any of that sanctimonious drivel about wanting our politics or society to be more civil. This is the classic liberal mantra, be personallly offensive at almost every level and then, if a conservative gives it back, complain that we are being uncivil.

As far as the point that the person was pointing to, Prop 8 was voted by the people and the courts threw it out. I remember when prop 187 was voted by the people and it, too was thrown out. There are other examples. So, I totally get what he was driving at. Liberals believe in democracy only when it fits their agenda. If it doesn't, well, I think the unpleasantness coming from you is illustrative.

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