After Prop 8 ruling, religious right vows to continue fight to Supreme Court
Religious right organizations were livid after news broke Tuesday that the 9th Circuit Court in California upheld a previous ruling that Prop 8 — the voter initiative that reversed marriage equality in California in 2008 — was unconstitutional. The court ruled that it was a violation of the 14th Amendment to the U.S. Constitution to take away a right that was already granted by the state. The groups vowed to take the fight to the U.S. Supreme Court.
Maggie Gallagher, president of the Institute for Marriage and Public Policy and former board chair of the National Organization for
Marriage, wrote a piece at the National Review titled “Ninth Circuit to 7 Million California Voters: You Are Irrational Bigots”:
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.
NOM sent an email to supporters asking for money and vowing to defend Prop 8 at the U.S. Supreme Court.
A Supreme Court victory would preserve the marriage laws of 44 states, denying same-sex marriage radicals in their campaign to force gay marriage on the entire nation in one fell swoop. But if we lose at the Supreme Court, marriage will be jeopardized not just in California, but in all 50 states.
We MUST have the resources to put on the best possible defense. And that is why NOM is so committed to helping fund the legal defense of Prop 8 and defend marriage laws all across the country. We have already given over $300,000 to help defend Prop 8 in court.
NOM also released a statement to the press regarding the decision:
“Never before has a federal appeals court – or any federal court for that matter – found a right to gay marriage under the US Constitution,” said constitutional scholar John Eastman, who is chairman of NOM. “The Ninth Circuit Court of Appeals is the most overturned circuit in the country, and Judge Stephen Reinhardt, the author of today’s absurd ruling is the most overturned federal judge in America. Today’s ruling is a perfect setup for this case to be taken by the US Supreme Court, where I am confident it will be reversed. This issue is the Roe v Wade of the current generation, and I sincerely doubt the Court has the stomach for preempting the policy judgments of the states on such a contentious matter, knowing the lingering harm it caused by that ruling.”
“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.”
Alliance Defense Fund, a conservative Christian legal outfit with ties to Pat Robertson and Focus on the Family’s James Dobson, blamed the court’s decision on Hollywood:
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.
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. 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.
The Family Research Council, an organization the Southern Poverty Law Center calls an “anti-gay hate group” said the judges were imposing San Francisco values on the entire country. FRC President Tony Perkins said:
“Today’s decision was disappointing but not surprising, coming from the most liberal Circuit Court in the country. This Hollywood-funded lawsuit, which seeks to impose San Francisco values on the entire country, may eventually reach the Supreme Court. This is not about constitutional governance but the insistence of a group of activists to force their will on their fellow citizens.
“This ruling substitute’s 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.
“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.
“Voters in 31 states have voted to uphold the historic and natural definition of marriage as the union of one man and one woman. Twenty-nine, a majority of American states, have actually inserted such a definition into the text of their state constitutions,” concluded Perkins.
Penny Nance of Concerned Women for America also chastised the decision:
Once again, the Ninth Circuit lives up to its reputation as the most overturned court in the country. Only this time, they have reached a new low. They not only showed a complete disregard for the Constitution, but also for those principles and values that gave birth to it, and for “we the people” who are supposed to be the ultimate authority.
Californians voted overwhelmingly to support the traditional definition of marriage that has been the foundation of this great nation. Our experiences have shown us, as science proves, that the best environment for children to develop as productive members of our society is in a home where there is a mother and a father who love them and each other unconditionally. Yet with a stroke of the pen these three judges have undermined the foundations of the family and liberty.
Shame on them.
We know this issue will eventually end up at the U.S. Supreme Court and we hope, for the sake of our country’s future, that they will show much more respect for the Constitution, our foundations and the people who give them the right to make these rulings in the first place.
Mathew Staver of Liberty Counsel, a religious right law firm founded by the late Jerry Falwell, noted that the decision only applies to California:
“The ruling is like kissing your sister. On the one hand, it is not the broad ruling sought by same-sex marriage advocates but, on the other hand, it also does not allow the people of California to limit the name ‘marriage’ to opposite-sex couples. If there is any good news that comes out of this opinion, it is that it’s limited to California and does not apply to the other 49 states and territories. This ruling will not open the floodgates to same-sex marriage, as some advancing that cause had hoped. 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. Even though the ruling is narrow in scope, it is rulings like these that undermine the legitimacy of the judicial system.”
The North Carolina Values Coalition which is working to pass a constitutional amendment banning same-sex marriage in that state, noted that the decision won’t affect their efforts. That vote is scheduled for May.
“The Ninth Circuit Court of Appeals is the most liberal appeals court in the nation, and thankfully their rulings have no bearing on the federal courts of North Carolina,” said Tami Fitzgerald, Chairwoman of Vote FOR Marriage NC, the pro-marriage coalition backing the Marriage Protection Amendment on the May ballot. “What the ruling does make clear, however, is the importance of enacting The Marriage Protection Amendment because that’s the only way to shield our state’s definition of marriage from being redefined by activist state judges. The proposed amendment protects North Carolina from being in the same position as California by not granting any legal recognition of same-sex relationships, which could be overturned by an equal protection argument. Every day that goes by is another day when a judge can decide to substitute his values for those of North Carolinians. We need the marriage protection amendment to prevent that.”
“We are confident that the federal courts in North Carolina will uphold a state amendment defining marriage as the union of one man and woman,” said Fitzgerald. “We are not California, fortunately. However, our definition of marriage is vulnerable until we put it into our state constitution. That’s what the Marriage Protection Amendment will do. We hope this ruling serves as a powerful reminder to voters that we must make sure activist judges cannot redefine marriage in our state.”
Image: Flickr Getty Images/Dave Delay
While the article did state, ” The Family Research Council, an organization the Southern Poverty Law Center calls an “anti-gay hate group”” it would have been helpful for readers to know why it is considered an anti-gay hate group. According to the SPLC website, inclusion on its anti-gay hate list, “…is based on their propagation of known falsehoods — claims about LGBT people that have been thoroughly discredited by scientific authorities — and repeated, groundless name-calling.” It is worth noting that NOM, Maggie Gallagher’s group, Concerned Women for America and Liberty Counsel are also listed on SPLC’s list of anti-gay hate groups.
Maggie G is concerned about Marriage Equality’s effect on “responsible procreation’. This is a false concern. Whereas about 50% of heterosexual pregnancies are “accidents”, virtually 100% of same sex pregnancies are planned.
Please support full Marriage Equality for all American.
I believe there is a very iamrotpnt issue that is not being considered here. In 1967 80% of the population was opposed to interracial marriage, And yet, at the time of SCOTUS’s decision in Loving no less than 34 state legislatures had banned laws prohibiting interracial marriage. Surely, with 80% of the population opposed to interracial marriage, it would seem that a higher amount of state legislatures could have been overturned by voter referendums had the public wished it. Why didn’t they?I believe it is Because on a fundamental level, the population understood that their major opposition to interracial marriage was due to racism. Other than that that, in what way did interracial marriage violate their understanding of marriage? Individuals of different races can have children and it did not require that their basic understanding of marriage be redefined. Allowing interracial marriage, while unsavory for them in 1967, did not violate there understanding about what marriage is.Same sex marriage, however, is different in the public’s view. In order for it (same sex marriage) to gain public acceptance, peoples understanding of what marriage is would require a major redefinition: something that the decision in Loving did not require. To date, only a handful of states have legalized same sex marriages either through their legislature or through the courts.Professor Eskridge is right to be concerned.