Gay Marriage

3 Reasons the 9th Circuit Screwed Up on Prop 8

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

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3 Responses

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  1. ZT205
    Feb 23, 2012 - 08:17 AM

    “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.” ”

    Meaning that even if those minorities WERE NOT MARRIED they’d still have to be included. And who cares if they have to spend one class period teaching about homosexuality when the odds are very high that in any large class at least one of the students will be homosexual, while many others will question their sexuality or have close friends dealing with related issues?

  2. ZT205
    Feb 23, 2012 - 08:15 AM

    Jared did a good job pointing out the issues. However, let me add it seems like you’ve cherry picked your precedents. For example, you claim “, 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.” Yet Loving v Virginia actually says it IS one of those rights.

    You also neglect to mention many people don’t consider Baker v Nelson a precedent because no federal court ruled on it. I also think it’s incorrect to interpret it as limiting Equal Protection claims to a “suspect class.” Certainly gays have become more of one singe the time of the ruling, anyway, and where in California, as Jared pointed out.

    Very few judges are going to agree with the dissent that a state interest can preserve anything that is “moral.” Since Gay Marriage isn’t harming anyone, the only people who think it’s “immoral” are doing so based on clearly unconstitutional religious grounds. If the state can arbitrarily declare anything “immoral” then it would ALWAYS have an interest, which defeats the point of the test and contradicts the amendment.

  3. Jared Cowan
    Feb 22, 2012 - 07:12 AM

    A few problems here. You first assume that a judge who is gay cannot be objective in terms of rendering judgment of the constitutionality of a state law that discriminates against homosexuals. More hasty generalizations as I saw with a recent article here concerning abortion and how to de-fund it.

    Second, gays have been considered a suspect class under California state law, due to the In re Marriage Cases case in 2008.

    The civil definition of marriage does not automatically force itself upon the religious definition. If any church chooses not to sanctify the marriage, they are not to be forced by the first amendment’s free exercise clause to do so, because it would be in conflict with religious beliefs and the exercise thereof in terms of officiating marriages. Your feelings getting hurt or feeling as if you’re being persecuted with no grounds to justify it are not sufficient to claim harm.

    And similarly, morality and legality do not necessarily coincide. Many people think abortion is immoral, yet it is perfectly legal up to 20 weeks of gestation. Likewise, the state legalizing gay marriage does not suggest that people will automatically view it as moral. Many will insist it is immoral, but that does not take away from the legality of that marriage if the government declares it so. There is no compelling interest to protect children from what you personally believe to be immoral if it is not damaging to their development. I would not have been more likely to be gay if I had learned about gay people and gay marriage when I was in junior high or even elementary school. I was, for all intents and purposes, chemically determined to be straight, just as my best friend is chemically determined to be gay.

    The sanctity of marriage is not protected by showing favoritism to religious interest groups who discriminate against gay people and try to legislate that discrimination in civil law, which is unconstitutional on several grounds, not the most explicit of which is the 1st amendment’s establishment clause.

    Homosexuality will not go away from public schools simply because you refuse to talk about it. People may be gay and the environmental pressure to make them think they must be straight is the only thing keeping them from potentially realizing that they have been deluding themselves.

    And immorality is not going to go away if you try to be moral. Even Christianity would set a precedent that the world is fallen and your efforts are in vain until the judgment occurs, whenever that is.


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