U.S. 9th Circuit Court Upholds Ban on Prop 8

by John M. Curtis
(310) 204-8700

Copyright February 8, 2012
All Rights Reserved.                                         

           When Prop 8, California’s Marriage Protection Act, banning gays and lesbians from marrying in the state, passed 52.24% to 47.76% via ballot initiative Nov. 4, 2008, it was a coup for the Mormon and Christian churches that spent $39.9 million.  More money was spent to pass Prop 8 than any other ballot measure in California history.  Never before had California seen so much out-of-state money lobby to pass a law that discriminated against gays and lesbians.  Gov. Jerry Brown, then state attorney general, watched helplessly as the “wisdom” of the electorate passed an unconstitutional law violating the 14th Amendment’s equal protection and due process clauses.  With budgets tight and cutbacks widespread, Prop 8 cost state taxpayers millions.  Nearly two years later, U.S. District Court Judge Vaughn Walker tossed out Prop 8 Aug. 4, 2010 for violating the Constitution.

            Proponents largely from religious organizations cite the bible for defending heterosexual marriage, insisting gay or lesbian marriage hits the U.S. with a wrecking ball.  They cite no evidence other than religious preferences to ban gay marriage.  “Proposition 8 serves no purpose, and has no effect, other that to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples,” 80-year-old Judge Stephen Reinhardt wrote for the three-judge panel.  Showing seamless consistency, the Circuit court agreed with the District court, who echoed the views of the Massachusetts’ High Court who ruled May 17, 2004 to legalize gay and lesbian marriage.  Massachusetts’ High Court was the first to recognize gay marriage as a civil right protected by the 14th Amendment.

            Prop 8 supporters promised to ask the full 9th Circuit Court to review the three-judge panel’s ruling, and, if needed, take it to the U.S. Supreme Court.  With only so many ways to skin a cat, proponents have run out of legal arguments and face an uphill  battle seeking to overturn the Circuit Court’s three-judge panel.  When District Court Walker ruled Aug. 4, 2004, he concluded that there was no “rational basis” for excluding gays and lesbians from marrying under U.S. and California law.  Prop 8 advocates argued that Walker should have recused himself because he was gay and was in a long-term domestic partnership.  Reinhardt reinforced Vaughn’s ruling, concluding that Prop 8 violated the 14th Amendment’s due process and equal protection clauses.  How proponents expect to frame their arguments in the full Circuit court or eventual Supreme Court is anyone’s guess.  

            Gov. Brown found out the hard way that California’s initiative process doesn’t provide vetting by the attorney general before wasting millions in tax dollars.  Had the attorney general had the authority to predetermine the constitutionality of ballot measures, taxpayers would have been spared millions.  Proponents argue that the courts disenfranchise voters, whose voting rights were violated by activist judges.  While there’s nothing wrong with giving the people a voice through ballot initiatives, it can’t violate the Constitution.  Recent statements by GOP presidential candidate former House Speaker Newt Gingrich, blasting President Barack Obama for attacking the Church by insisting Catholic hospitals dispense free contraception, illustrate the confusion.  Gingrich equates Catholic hospitals with the Church, just as Prop 8 advocates equate the state with the Church.

            Banning gay marriage in churches doesn’t compromise the Constitutional rights of gays and lesbians.  They’re free to go the church of their choice that accepts gay or lesbian marriage.  No Church should be forced by the federal government to marry gays and lesbians.  Proponents don’t get the Constitution’s Separation Clause requires a clear line between religious and secular activity.  Churches are free under the 1st Amendment to keep the government from encroaching on their religious freedom.  By the same token, Churches must stay out of government’s backyard.  Prop 8 violated the government’s authority to enforce the Constitution.  Whether a majority of Californians voted to pass Prop 8, the courts can’t rubber stamp measures that violate the Constitution.  Proponents have no legal legs to stand on arguing gays and lesbians should not have the same rights as heterosexuals.

            U.S. 9th Circuit Court Judge Reinhardt got it right in California tossing out Prop 8 for violating gays and lesbians’ 14th Amendment rights.  Without solid legal grounds, Proponents will fair no better in the full Circuit court or eventual Supreme Court should they hear the case.  Whether Church groups wish to ban gay or lesbian marriage on religious grounds, the state cannot encroach on their 1st Amendment rights.  Asking all 11 Circuit Court 11 members to arrive at a different conclusion is illogical, impractical unrealistic.  Religious conservatives have every right to their views as long as they don’t impose them on a society governed by the U.S. Constitution.  Their blind loyalty to the bible speaks volumes about their disregard of the U.S. Constitution.  While there’s nothing wrong with banning gay and lesbian marriage in churches, there’s something very wrong violating the Constitution.

  John M. Curtis writes politically neutral commentary analyzing spin in national and global news.  He's editor of OnlineColumnist.com.and author of Dodging the Bullet and Operation Charisma.       

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