Legal scholar Ed Whelan is out with a second and more extensive look at the 9th Circuit's decision, penned by Judge Reinhardt. Whelan points out at NRO several more flaws in the ruling, including:
2. For Reinhardt, “‘marriage’ is the name that society gives to the relationship that matters most between two adults.” (P. 37.) The right to marry that the state supreme court conferred on same-sex couples “symbolize[d] state legitimization and social recognition of their committed relationships.” (P. 5.)
Notice what’s missing from Reinhardt’s description? Any recognition that the very institution of marriage arose and exists in order to encourage responsible procreation and childrearing.
... 5. If one accepts Reinhardt’s reasoning that dismisses the core rationales for traditional marriage, I don’t see how traditional marriage laws could survive anywhere. In other words, the sweep of Reinhardt’s reasoning is far broader than his purportedly narrow holding.
6. Former judge Vaughn Walker’s purported factual findings play virtually no role in Reinhardt’s ruling. That’s further evidence that Walker’s whole trial was a pointless (and time-consuming) farce.
Defenders of marriage in California will appeal Tuesday’s ruling from the U.S. Court of Appeals for the 9th Circuit that upheld a district judge’s decision against the state’s constitutional amendment protecting marriage. The ProtectMarriage.com legal defense team, including Alliance Defense Fund attorneys, expressed no surprise that the lawsuit over the amendment, which protects marriage as the union of one man and one woman, would progress beyond the three-judge 9th Circuit panel as has been long predicted by parties on both sides.
... “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,” said ADF Senior Counsel Brian Raum. “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.”
“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,” Raum added. “Every pro-marriage American should be pleased that this case can finally go to the full 9th Circuit or 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.”
NOM co-founder Maggie Gallagher in NRO's The Corner reacting to the 9th Circuit decision:
In a breathtaking exercise in ill-natured illogic, a divided Ninth Circuit ruled 2–1 that because Prop 8 does not take away civil-union benefits for same-sex couples, it’s an unconstitutional exercise in irrational animus towards gay people.
Dishonestly, the court claimed it did not require any heightened scrutiny to reach this result.
The very timid dissent (“please don’t go after me!”) points out that Baker v. Nelson is ruling precedent and that the differences between same-sex and opposite sex couples in terms of the state’s interest in responsible procreation could be rationally related to a legitimate state interest.
Back in 2004, when we fought about a Federal Marriage Amendment, gay rights advocates said we were alarmists for claiming that they would go to federal court seeking a right to impose gay marriage on all 50 states.
That was so last decade.
Please visit www.NationforMarriage.org/Prop8 to find out how you can stand up for marriage in California, as Prop heads to the Supreme Court.
NRO's Legal expert Ed Whelan on today's 9th Circuit decision:
As I expected, a divided panel of the Ninth Circuit has affirmed former judge Vaughn Walker’s outlandish ruling that California’s Proposition 8 violates the federal Constitution. Arch-liberals Judge Stephen Reinhardt and Judge Michael Hawkins were in the majority, with Hawkins joining Reinhardt’s opinion. Judge Randy Smith dissented.
From a quick skim of the introduction, I see that the majority opinion purports to be narrow. It doesn’t opine on the general question “[w]hether under the Constitution same-sex couples may ever be denied the right to marry.” [Emphasis in original.] Instead, it maintains that the particular context in California—in which same-sex couples under California’s domestic-partnership law had all the rights of opposite-sex couples and in which Proposition 8 restored the definition of marriage that the state supreme court had invalidated—means that there was no “legitimate reason” for Proposition 8.
In the grand scheme of things, there is nothing enduringly significant about today’s ruling. The Ninth Circuit was just a way-station on the path to the Supreme Court, and the composition of the Ninth Circuit panel meant that there was no prospect for a reversal of Walker’s ruling. What would have been most troubling would have been a ruling that Prop 8 proponents didn’t have standing on appeal, as that might have complicated the prospects for Supreme Court review. But the case now has a seemingly clear path to the Supreme Court.
Washington, DC—"As sweeping and wrong-headed as this decision is, it nonetheless was as predictable as the outcome of a Harlem Globetrotters exhibition game," said Brian Brown, NOM's president. "We have anticipated this outcome since the moment San Francisco Judge Vaughn Walker's first hearing in the case. Now we have the field cleared to take this issue to the US Supreme Court, where we have every confidence we will prevail."
We will have comment shortly after the decision is released tomorrow, so stay tuned:
The Ninth Circuit Court of Appeals is expected to release its opinion on the constitutionality of California's voter-approved ban on same-sex marriage Tuesday morning.
The appeals court is deciding whether to uphold or reverse a federal judge's 2010 ruling that Proposition 8, which was approved by voters in 2008, was unconstitutional. Regardless of the outcome, the decision is expected to be appealed to the United States Supreme Court.
The opinion will be posted online at 10 a.m, according to a press release from the court.
The opinion is also expected to address Proposition 8 proponents' argument that the federal court ruling should be thrown out on the basis that the judge in that case, Vaughn Walker, should have recused himself from the case because of his own sexual orientation. An earlier motion to that effect was dismissed by another U.S. District judge last year. -- Sacramento Bee blog
Washington, DC—The National Organization for Marriage (NOM) today applauded the unanimous decision of the Ninth Circuit Court of Appeals to overrule a lower court decision that would have allowed the public broadcast of the Proposition 8 trial even though former Chief Judge Vaughn Walker promised he would only use the recording for his own use in chambers. The court ordered the recording to be sealed and prohibited the lower courts from returning a copy to Walker.
A federal appeals court refused Thursday to make public the video of the Proposition 8 same-sex marriage trial, a victory for opponents of gay marriage.
A three-judge panel of the U.S. 9th Circuit Court of Appeals said the video from the 2010 federal trial in San Francisco should remain sealed because the trial judge promised the defenders of the proposition that it would be used for internal court purposes only.
“The trial judge on several occasions unequivocally promised that the recording of the trial would be used only in chambers and not publicly broadcast,” the panel said.
The 9th Circuit ruling overturned a lower court decision in favor of making the video public, a position favored by the news media and gay rights groups.
... The court also decided that retired Chief Judge U.S. District Judge Vaughn R. Walker, who presided over the Proposition 8 trial and ruled the measure unconstitutional, is not entitled to keep a copy of the recordings. After his retirement, Walker used a snippet from the testimony in a lecture about cameras in the court.
Tom Farr is the director of the Religious Freedom Project at the Berkley Center for Religion, Peace and World Affairs at Georgetown University. He writes with Tim Shah in the New York Times:
In 2010, the U.S. District Court Judge Vaughn Walker invalidated a California ballot initiative for which millions of religiously motivated blacks and Latinos, among others, had voted on the same day they cast ballots for Barack Obama. The measure was Proposition 8, defining marriage as between a man and a woman. The presence of religious arguments in the campaign led Judge Walker to assert that the "moral and religious views" underpinning the vote were not “rational,” rendering the measure unconstitutional.
Walker's ruling, like Obama's assertion, represents a results-oriented effort to expel religious arguments from democratic deliberation. This has been a tempting device for partisans of all stripes. To silence religiously motivated civil rights advocates like Martin Luther King Jr., Jerry Falwell once asserted that “Preachers are not called to be politicians, but soul winners.” Whatever its source, any effort to confine religious people and their ideas to an innocuous spirituality or a merely ceremonial role in public life is a threat to religious liberty and to American democracy.
Fred Karger typifies the extremist gay marriage activist who pushes for gay marriage by demonizing and attacking pro-marriage supporters (including NOM and the Church of Jesus Christ of Latter Day Saints). His most recent stunt, launching a website targeting Mormons for hate, is earning him condemnation from op-ed writers across the country, as it should.
Karin Klein of theLos Angeles Times Opinion Staff:
Funny that Fred Karger, gay rights advocate, founded the group Californians Against Hate, since his most recent campaign seems to be about spreading bigotry.
Negative campaigns and ugly smears might be the stuff of politics these days, but within this category, Karger gets a special space all his own after launching an attack website against Mormonism that purportedly reveals the 10 "craziest beliefs" of Mormons, lest voters consider voting for Mormon candidate Mitt Romney. The site doesn't actually have such a list; it's more a place where anyone can anonymously post any sort of canard about Mormonism. Perhaps rational people could also try inserting some truths, if those are actually allowed.
The blogger "Piranhamous" for the Fishbowl DC political blog:
Karger’s hatred of Mormons seems to stem from his “organization Californians Against Hate (now Rights Equal Rights) to investigate the LDS Church and the National Organization for Marriage in their campaigns against marriage equality in California and Maine.” So it’s not political, it’s personal.
Unfortunately for Fred, his Facebook announcement of his new website seems to have cost him quite a few potential voters, and it didn’t have any to spare.
All comments, with one exception, were negative with the most common word used being “shame.” One poster wrote, “Run on your platform and stop slamming the Mormons.” But then again, when you create a website like Fred did, slamming Mormons seems to be his platform.
File this under “stupid” and try to forget you ever heard the name Fred Karger. It shouldn’t be too hard to do.
George W. Dent, Professor of Law, Case Western Reserve University Law School writes at-length in the Federalist Society's Engage publication on the legal status of Prop 8 and concludes:
The Constitution confers no right to legal validation of same-sex marriage. As Judge Richard Posner has said, “If there is such a right, it will have to be manufactured by the justices out of whole cloth.” For the Supreme Court to do so would gravely damage its legitimacy and invite efforts to change the composition of the Court. However justified the public anger at the obliteration of traditional marriage, such moves would create a dangerous precedent. It is hoped that the Court will not provoke such action.
Gay activists often try to point to the Williams Institute's claims that redefining marriage will stimulate state economies. We recently pointed out a small business owner in Washington, DC showing how these claims turned out to be false.
Last week the Associated Press noted that California's nonpartisan Legislative Analyst's Office and Department of Finance found that "the potential financial effect [re-legalizing same-sex marriage in California] on state and local governments would be negligible over the long run." You can see a PDF of their report here.
Interestingly enough, they said the same thing about passing Prop 8 back in 2008.
Bottom line: over the long run, legalizing same-sex marriage won't create an economic boom for states. And there's plenty of evidence that it will cause real harm. That much at least is clear.
In October, Equality California chose to abandon an attempt to repeal Prop 8 at the ballot because they believed they would lose.
Another group however still intends to give it a shot:
A gay rights group that wants to repeal the state constitutional amendment that stripped same-sex couples in California of the right to get married received clearance Friday to start gathering signatures for a measure that would rescind the gay marriage ban known as Proposition 8.
Los Angeles-based Love Honor Cherish has until May 14 to collect the 807,615 voter signatures required to qualify its initiative for the November 2012 ballot, the secretary of state's office said.
... The repeal initiative submitted by Love Honor Cherish would strike Proposition 8 and state instead "that marriage is between only two persons and shall not be restricted on the basis of race, color, national origin, sex, gender, sexual orientation, or religion," according to a summary prepared by the California Attorney General's office. -- The Mercury News
ProtectMarriage.com's brilliant lead attorney Chuck Cooper delivered an impassioned closing statement at last Thursday's Prop 8 Hearing at the 9th Circuit of Appeals.
In this video, he's arguing that Judge Walker ought not have hidden the fact that he was in a long-term relationship with a man and that by not doing so Walker in effect decided his own case when he ruled Prop 8 unconstitutional:
In this video, Therese Stewart, chief deputy attorney of San Francisco, speaking for the opponents of Prop 8, delivers a series of leading, contradictory arguments for why Judge Walker did not have to disclose the fact that he was in a long-term relationship before deciding to hear and rule on Prop 8.
At first, she accuses supporters of prop 8 of being guilty of "stereotyping ... that gay people in relationships are likely to want to get married" and then, seconds later, in response to a question from the judge's panel, she says "every gay person wants to get married". We suspect that if the panel finds in favor of the opponents of Prop 8, in won't be because they were persuaded by these arguments:
