Signs reading, “Liberty, Justice, and Marriage Equality” can be seen all over the news now that California’s Proposition 8, which stripped homosexual couples of their right to get “married,” was declared unconstitutional by a divided three judge panel from the 9th Circuit in Perry v. Brown.  Unfortunately, Proposition 8 was perfectly constitutional and the two 9th circuit judges who affirmed its unconstitutionality were legislating from the bench.  The two judges, Stephen Reinhardt, a Jimmy Carter appointee, and Michael Hawkins, a Bill Clinton appointee, took it upon themselves to strike down the law.  Judge N. Randy Smith, a George W. Bush appointee, issued his own dissenting opinion.

Legislative bodies cannot “amend or repeal” propositions — laws enacted by the people.  These two activist judges decided to take matters into their own hands.  An earlier district court decision was made by Chief Judge Vaughn Walker, who not only legislated from the bench but profited from his own ruling, as he may want to marry his male partner in the future.  Talk about a conflict of interest.  It is tantamount to having a proponent of polygamy rule on a case deciding the legality of a law prohibiting polygamy.

The problems with the 9th Circuit’s decision are numerous, but the three most glaring issues are its improper interpretation of the Equal Protection Clause, analysis of the harm done by changing the definition of marriage, and holding on the power of states to ensure legitimate interests

Equal Protection Clause v. Marriage Laws

The government cannot prevent a white man from marrying a black woman, nor can it prevent a lower class man from marrying an upper class woman, but it can prevent relatives from marrying each other and it can stop a man from taking multiple wives.

This is because the “Fourteenth Amendment is not offended by the state’s classification of persons authorized to marry,” unless its classification targets certain protected classes, Baker v. Nelson, 409 U.S. 810 (1972). For instance, race is a protected class, so the ruling in Loving v. Virginia (1967) abolished Virginia’s anti-miscegenation laws.  Sexual orientation, however, is not a “suspect classification” like race, so classes can decide whether or not to allow homosexuals to obtain marriage licenses within their borders, High Tech Gays, et al v. Defense Industrial Security Clearance Office, et al 895 F.2d 563 (1990).

Judge Reinhardt wrote in his opinion in Perry that fundamental rights “cannot be denied to particular groups on the ground that these groups have historically been denied these rights.” This does not mean that Baker v. Nelson is invalid and that states cannot choose their own laws concerning marriage.

Furthermore, review of the Equal Protection Clause is “not a license for courts to judge the wisdom, fairness, or logic of legislative choices;” it is merely there to uphold civil rights, Heller v. Doe, 509 U.S. 312 (1993). Gay marriage is not one of those rights.

Could I Have The Definition Please?

Pursuant to California Family Code Section 300. (a) marriage is defined as, “a personal relation arising out of a civil contract between a man and a woman.” In 2000, Proposition 22 led to the addition of a clause stating that, “Only marriage between a man and a woman is valid or recognized in California,” Cal. Fam. Code Sec. 308.5.

In Perry, Judge Reinhardt stated that marriage as a word “conveys a sense of significance.” He continued, “A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed relationship, a marriage by the name of ‘registered domestic partnership’ does not.” He recognizes the importance, which is good, but misjudges the impact.  Just as a “domestic partnership” does not mean as much to a homosexual couple as “marriage” does, think of what equating the two together would do to the word “marriage” for religious heterosexuals. In other words, who suffers more when the definition is changed; it is basic economics, with everything based on the maximization of utility, yet Reinhardt just ignores that.

State Interests Revoke

Denying homosexuals the “social status conveyed by the designation of ‘marriage’” is a harm that the state must have a legitimate interest to justify according to the decision in Perry.  Clearly, Judge Reinhardt does not believe that California’s interests are legitimate. That homosexuals cannot procreate, oftentimes commit abominable acts, and promote tolerance of immoral practices should be reasons enough to deny them a marriage license.

Judge Smith dissented because he believed that Proposition 8 did relate to a “legitimate government interest.” He wrote that the California Supreme Court applied the “principles and rules embodied in the California State Constitution” to Proposition 8 and affirmed its validity, which is one reason he found it legitimate. States may use their power to address concerns of public “safety, morals, and welfare,” Berman v. Parker, 348 U.S. 26 (1954). Thus, ensuring that immoral practices are not given the same status as moral practices must fall under the powers of the state.

One argument furthered by amici curiae was that the state needed to keep homosexuality and gay marriage out of public schools. The Court dismissed this as a legitimate concern, as “both before and after Proposition 8, schools have not been required to teach anything about same-sex marriage.” This assertion by Judge Reinhardt is misleading. A bill passed last year, titled SB48, “requires the California Board of Education and local school districts to adopt textbooks and other teaching materials that cover the contributions and roles of sexual minorities, as soon as the 2013-2014 school year.” This means that if a teacher in a history class has one lesson left, and can decide between either the plaintiff in this case or former Chief Justice William Rehnquist, he would be legally bound to teach about Proposition 8 and this court’s decision.

The state of California has legitimate interests in protecting the sanctity of the word marriage, in keeping homosexuality out of public schools, and in preventing immorality from spreading. More importantly, the Supreme Court needs to address this issue of liberal judges using the Equal Protection Clause to force their wisdom onto the people of a state, when this is not their duty, as highlighted in Heller.

Adam Ondo :: University of Rochester :: Rochester, New York :: @JoplinMaverick