A federal appeals court panel ruled on Tuesday that a voter-approved ban on same-sex marriage in California violated the Constitution, all but ensuring that the case will proceed to the United States Supreme Court.
The three-judge panel issued its ruling Tuesday morning in San Francisco, upholding a decision by Judge Vaughn R. Walker, who had been the chief judge of the Federal District Court of the Northern District of California but has since retired. The panel found that Proposition 8 ”“ passed by California voters in November 2008 by a margin of 52 percent to 48 percent ”“ violated the equal protection rights of two same-sex couples that brought the suit. The proposition placed a specific prohibition in the State Constitution against marriage between two people of the same sex.
But the 2-1 decision was much more narrowly framed than the sweeping ruling of Judge Walker, who asserted that barring same-sex couples from marrying was a violation of the equal protection and due process clauses of the Constitution. The two judges in this case stated explicitly they were not deciding whether there was a constitutional right for same-sex couples to marry, instead ruling that the disparate treatment of couples under California law since the passage of Proposition 8 violated the Equal Protection Clause of the Constitution.
The Anglican Curmudgeon provides an excellent analysis of the decision. He pens a most apt conclusion to his thoughts:
I would guess that the Proposition 8 defenders will seek an immediate appeal to the USSC (not sure if they are required to seek an en banc appeal in the 9th Circuit first) and then this will probably depend largely on Justice Kennedy.
James
You beat me to the point of my comment. The 9th Circuit is so notoriously liberal that if the world were flat they would be in imminent danger of falling off the leftward edge. This decision was highly predictable. Point in fact, I would have been shocked if it had gone the other way.
The Circuit is not so “liberal” as it once was. However, it retains the distinction of a very high reversal rate. I had a spate of constitutional cases in that Circuit a few years ago. I joked with my opponents before oral argument that the reason arguments were so horrible in the Circuit was because both sides were trying to throw the case in order to be the loser when the Supreme Court weighed in.
This is a split decision in that there is a cogent dissent. In such a situation, I think there is merit in an appeal to the Court sitting en banc. It’s not required, but I would not consider it a futile act.
It is truly amazing that, as everyone knows, children are the natural result of biological coupling of a man and a woman. If no other proof is required look and the number of abortions the liberal/progressives support that result from this coupling.
On the other hand same sex biological never, never results in offspring.
Yet with verbal slights of hand and intellectual dishonesty that would astound the Father of Lies, Judge Walker and the 9th Circuit have said that this biological fact is not rational for the purpose of law making and that sex between same sex couples must be treated by the state as equal to that between a man and a woman.
The courts that have looked at this would acknowledge the obvious point you make, No. 4, but probably deem it irrelevant to the narrow task before them. Their opinions have not been based on the mechanics and results of the sexual act, but rather the legal status bestowed by the state on married couples in secular marriages. Where defenders have had difficulty in defending traditional marriage concept is not on religious or biological grounds, but on the question of whether there exists a constitutionally adequate rationale for the state’s withholding of a legal status from certain pairings of citizens as opposed to others. It is the Loving v. Virginia issue (state bans on mixed race marriages) brought forward into a new factual environment.
5, what you over look my liberal friend is that there is no logical connection between categories base on race and sexual behavior.
The indispensable essence of marriage is the biological fact that sex between male and females produce children. Men and women do that regardless of race, creed, color and national origin. And same sex couples regardless of the above can do so. There may be sometimes that men and women do not or cannot produce children, but by and large they can and do.
Men and men/ women and women cannot produce children. Not now and not ever. And no court ruling or the contortions of the liberal/progressive legal sophistry will ever make it so. They can, and have as you point out ignore it and base their decisions on a lie, but at the end of the day the lie will be seen for what it is.
5, what you over look my liberal friend is that there is no logical connection between categories base on race and sexual behavior.
The indispensable essence of marriage is the biological fact that sex between male and females produce children. Men and women do that regardless of race, creed, color and national origin. And same sex couples regardless of the above [b]cannot[/b] do so. There may be sometimes that men and women do not or cannot produce children, but by and large they can and do.
Men and men/ women and women cannot produce children. Not now and not ever. And no court ruling or the contortions of the liberal/progressive legal sophistry will ever make it so. They can, and have, as you point out, ignore it and base their decisions on a lie, but at the end of the day the lie will be seen for what it is.
“There may be sometimes that men and women do not or cannot produce children, but by and large they can and do.”
The number of couples who choose not to have children through contraception or sterilization is far from negligible, and the number of couples who cannot have children further increases the number of those male/female couples who are childless, yet receive all the rights, benefits, and responsibilities of state-sanctioned marriage.
What, then, is the rational basis for excluding same sex couples from civil marriage, especially those couples that are raising children?
The rational basis, Brian, is that marriage [i]per se[/i] has always been fundamentally and overwhelmingly about reproduction. That is why, for example, the bastard child of a prince is not in the line of succession to the throne.
The inability or the unwillingness of some couple to reproduce does not change that fundamental basis in the slightest — no more than the fact that a certain percentage of lawyers or doctors have chosen not to practice the fundamental activity to which they were licenced.
A homosexual man is not denied the right to marry. He can marry any woman who will have him. The fact that he [b]chooses[/b] not to marry a particular woman — or any woman — does not remove his [i]RIGHT[/i] to marry. He has that option until the day he dies.
The problem has arisen only in the recent “post-modern” generation with its foolish proffer that all systems, all cultures, all beliefs, and all behaviors are equally valid. In that [b]culture of the [i]SELF[/i][/b] the putative basis of marriage becomes merely a question of feelings and emotion.
History is bigger than the small minds of the Baby Boomers whose vision extends no farther than their next orgasm. That’s no basis for changing at least 5000 years of history.
All that said, however, government can — and SHOULD — be vastly more creative and effective in developping and administering a structure for civil partnerships. Many of the privileges attendant to marriage ought to be available to any civil partnership, and such partnerships should not be created or limited to same-sex couples.
Two bachelor Norwegian farmers in North Dakota? Yup. A mother and daughter? For sure. Two older widows? Why not? And if a church wishes to bless that partnership … well why not, either?
Just don’t attempt to call it “marriage” because it’s not. Or, as we used to say in New England … “if the cat has kittens in the oven, that don’t make ’em biscuits.”
8, Bert’s response is pretty good. I would say to you, then why have marriage or “civil partnerships” at all? Why not do away with the concept entirely and just have singles?
Remember, male and female can have children of their body, gay couples never can. Unfair? Take it to God.
I think that the better question is this – if marriage is now simply a long-term covenant between persons, what is the rational basis for the state recognizing it at all? Why should the state compel its citizens to give certain subsidies and benefits to certain persons who choose to enter into a long-term covenant together, but only if such covenants include some sort of sexual acts? Why? And why should such recognition be limited only to covenants between only two persons? And why should such recognition be limited only to covenants including some sort of sexual acts?
The only reason the state has for recognizing marriage is because marriage is the basic building block of societal reproduction and continuation. Only a man and a woman can do so. It doesn’t matter that many choose not to, or that a few can’t. That is no logical basis for redefining marriage to be something which can’t possibly be the basic building block of societal reproduction and continuation.
In my view, the state either recognizes man-woman marriage, or else it has no business recognizing anything. I frankly don’t care if my neighbor chooses to make a long-term contract with his lover for sex and mutual care; any more than if he chose to make a long-term non-sexual contract with his sibling or parent to support each other for the rest of their lives. The state has no business preferring one over the other.
[blockquote]In my view, the state either recognizes man-woman marriage, or else it has no business recognizing anything. [/blockquote]
That’s it in a nutshell.
Br. Michael: in your No. 6 comment, I think you are confusing me with someone else. No one who knows me ever mistakes me for a liberal on constitutional issues. My conservatism is deeply rooted on these points.
No. 11 offers an important perspective. This discussion often confuses religious with governmental interests. Those of us with Biblical views of marriage should be little concerned with how secular governments deal with them. As long as we are protected by the Constitution to apply religious standards to religious marriages, what the State does with this is of little concern. The State’s interests in this are trivial compared with the spiritual interests in the estate of marriage.
I do not support the recent decision. I wrote the following comment to help understand how we as a society got to this point.
Once society rejected the idea that marriage was for the mutual benefit of the spouses and for the rearing of children, as well as the idea that it was in the best interest of a child to be reared by a father and a mother united in marriage the argument against same sex marriage was lost.
If marriage is only a legal recognition of the affection a couple or trio or group have for each other, it hardly makes sense to restrict it to heterosexual couples. The State can not argue it has a special interest and duty to preserve such a definition of marriage for the sake of the common good and the benefit of children and the protection of women. Instead the State must remain neutral and restrict itself to making sure that the marriage is consensual. Indeed at this point the State has more of an interest in how marriage ends than in how marriage should be defined.
It would be foolish to think the State can argue it continues to have a legitimate reason for prohibiting polygamy, bigamy or even marriage between incestous couples. All of these relationships may be loving and consensual so why not extend to them the legal name and benefits of marriage?
Since the special interest the State has in promoting marriage between one man and one woman has been rendered moot by the abandonment of our commitment to protect and promote the right of children to be reared by a mother and father within marriage it seems foolish to restrict marriage to a union that was designed for that very purpose. Once we accept the idea that all situtions in which a child are brought up are of equal benefit provided active harm is not done to the children we have to accept that marriage must be expanded to embrace any union in which children may be reared. The fact that it is very likely that children will not be part of any union also makes a restricted definition of marriage moot.
There is a reason why marriage developed as it did and why such. marriage is essential to the growth of a stable civilization. Marriage is becoming unmoored from that history and it will not be good for us or for our children.
14, I would argue that having made marriage pointless, as you show, there is no point in expanding it, but it should be done away with. It’s like a car with no engine, there is no point or reason for it.
“…marriage per se has always been fundamentally and overwhelmingly about reproduction…”
“The inability or the unwillingness of some couple to reproduce does not change that fundamental basis in the slightest…”
So, marriage is fundamentally about reproduction, but an unwillingness to reproduce doesn’t matter .. unless the couple is of the same sex?
Clearly then, it’s not about reproduction, it’s about the couple being gay.
As for kittens and biscuits, we would be shocked and offended if a Roman Catholic continually referred to “the pretended priest Kendall Harmon” or “Nancy, who claims that she was ‘married’ to Ronald Reagan.” Roman Catholics do not recognize Anglican Orders, nor do the recognize as valid second marriages of those who had been validly married. Clearly, they are entitled to hold those views, yet, in ordinary civil interaction, we expect them to extend these courtesies despite their deeply held beliefs and would find it absurd for them to try to enforce their views and their nomenclature through civil law. Why cannot, why will not, the same courtesy be extended to same-sex couples?
Clearly then, it’s not about the validity of the marriage, it’s about the couple being gay.
16: You talk about the issue as a matter of extending courtesies. For you this may be the only interest, and you are happy to say from henceforth and always people can hold and teach whatever private views they want to hold and teach. But why should anyone believe that the matter ends there?
As I recall, the whole point of civil unions that stop short of being called “marriage” was it would be a political compromise–both sides get something. Turns out that compromise was short lived.
Say that the issue is resolved in your favor and the state will have to start calling marriages what are now called civil unions. Because as you state, the verbal distinction is discourteous. Why wouldn’t it be discourteous for someone to teach people (and especially children) that there is a moral distinction between these civil marriages and traditional marriage? These is plenty of precedent in Europe and in the U.S. for the state to encroach on an individual’s or group’s rights privately to teach certain sexual behaviors are immoral, to refuse state sponsored teaching that certain sexual behaviors are not immoral, not to fund abortions and sterilization, etc.
You are undoubtedly sincere that verbal discourtesies are your only interest. It’s just foolish to think that your views reflect the marriage equality movement’s goals.