Arguments are scheduled Monday before the 9th U.S. Circuit Court of Appeals in San Francisco in Perry v. Schwarzenegger, the federal court challenge to the decision (made twice) by voters in California to define marriage in their state constitution as being between one man and one woman, only.
And lawyers say that the issue is far bigger than just a single state law affecting benefits, rights and the advance of a regional homosexual social agenda.
"What's at stake in this case is bigger than California and bigger even than marriage," said Brian Raum, a senior counsel for the Alliance Defense Fund, which is part of the team arguing on behalf of traditional marriage.
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"Americans are concerned about how marriage, voter rights, religious liberty, and other issues will be affected nationwide if this lawsuit is allowed to prevail. As was recently demonstrated on Election Day in Iowa and previously in 31 other states, Americans are tired of activists unhappy with the democratic process who therefore demand the courts conduct a hostile takeover of marriage for them," he said.
"Americans understand that this lawsuit seeks to impose – through a San Francisco court – an agenda that the country has repeatedly rejected," he said.
The reference to Iowa notes the fact that voters last month fired three of the seven state Supreme Court justices who earlier had imposed homosexual "marriage" on residents. The remaining justices were not up for a vote at this time.
And Raum's reference to 31 other states is the number of times that voters, when given the opportunity to vote on the issue, have chosen to define marriage as being between one man and one woman, only. There haven't been such votes in the other 19 states yet.
The fact that Proposition 8 in California is just part of the longterm stakes was noted in a terse warning from California Supreme Court Justice Marvin Baxter. In a dissenting opinion in the 2008 state court ruling that created same-sex "marriage" he noted the "legal jujitsu" required to establish same-sex "marriage" by court order.
"The bans on incestuous and polygamous marriages are ancient and deeprooted, and, as the majority suggests, they are supported by strong considerations of social policy," Baxter warned. "Our society abhors such relationships, and the notion that our laws could not forever prohibit them seems preposterous. Yet here, the majority overturns, in abrupt fashion, an initiative statute confirming the equally deeprooted assumption that marriage is a union of partners of the opposite sex. The majority does so by relying on its own assessment of contemporary community values, and by inserting in our Constitution an expanded definition of the right to marry that contravenes express statutory law.
"Who can say that, in 10, 15 or 20 years, an activist court might not rely on the majority's analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?" Baxter wrote.
That argument, in fact, is being made now in a court case in Canada, where the acknowledgement of "marriage rights" for same-sex duos is being cited as a reason to strike polygamy laws.
The opinion with which Baxter disagreed created same-sex "marriage" in California, a decision that was overturned by Proposition 8. That, then, was suspended by a federal court judge in the current case.
The impact of the case probably is indicated by the pages and pages of amicus briefs that have been submitted to the court
Among those submitting evidence include the American Center for Law and Justice, the American Civil Rights Union, the American College of Pediatricians, Catholics for the Common Good, Center for Constitutional Jurisprudence, Concerned Women for America, Eagle Forum Education and Legal Defense Fund, High Impact Leadership Coalition, The Center for Urben Renewal and Education, the Frederick Douglass Foundation, Liberty Counsel, Campaign for Children and Families, Jews Offering New Alternatives for Healing, Liberty Institute, Association of Maryland Families, California Family Council, Center for Arizona Policy, Citizens for Community Values, Cornerstone Action, Delaware Family Policy Council, Family Action Council of Tennessee, The Family Foundation, The Family Policy Council of West Virginia, National Association for Research and Therapy of Homosexuality, National Legal Foundation, National Organization for Marriage, Parents and Friends of Ex-Gays and Gays, professor of psychiatry Paul McHugh, the states of Indiana, Virginia, Louisiana, Michigan, Alabama, Alaska, Florida, Idaho, Nebraska, Pennsylvania, South Carolina, Utah and Wyoming and Family Research Council.
Those arguing officially on behalf of marriage are from ProtectMarriage.com, which was the official group behind Proposition 8 when voters adopted it in 2008.
But the ADF said the case has the potential to create "years of chaos and confusion in the legal battle to preserve marriage. It could impacat marriage laws in up to 45 other states – including the … states where voters overwhelmingly adopted state constitutional amendments…"
The ADF report said also at stake is:
- The common sense idea that every child should have a right to be raised in a home with both a mom and a dad
- Whether America will be forced to accept the bizarre, court-invented claim that men and women are interchangeable
- Whether Americans will be forced to surrender their freedom to set public policy to a small group of wealthy activists who wish to impose their will on a state or an entire nation
- Whether marriage will remain a unique institution that promotes the important interests of children and society…
- Whether voters may freely consider their own moral and religious views about marriage … or be forced by violence and intimidation to remain silent
- Whether voters may collectively decide through the democratic process that marriage between one man and woman should be protected
Traditional marriage advocates are trying to turn back the stunning conclusions of U.S. District Court Judge Vaughn Walker, an open homosexual, who in September overruled more than seven million voters to banish Proposition 8, setting up an appeal to the 9th U.S. Circuit Court of Appeals.
His 136-page ruling said, "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples."
Walker also wrote:
- "Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians."
- "Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed."
- "The gender of a child's parent is not a factor in a child's adjustment."
- "The evidence shows beyond any doubt that parents' genders are irrelevant to children’s developmental outcomes."
- "Gender no longer forms an essential part of marriage; marriage under law is a union of equals."
- "Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples."
Walker declared Prop 8 violates the rights of homosexuals under the federal Constitution.
Earlier it was announced which 9th Circuit judges would be hearing the case, and Randy Thomasson, chief of the SaveCalifornia.com Campaign for Children and Families wrote, "It doesn't look good."
"The 'randomly chosen' three-judge panel of the infamously liberal 9th Circuit was announced Monday … Let me tell you about Stephen Reinhardt, the ultimate judicial activist: In 2009, he wrote an opinion calling the federal Defense of Marriage Act 'unconstitutional' – despite the U.S. Constitution being silent on marriage and homosexuality. In 2007, Reinhardt ruled that partial-birth abortions are a constitutional guarantee. And in 2005, in a sex survey dispute, he ruled parents of elementary-age children in public schools give up any moral objections to their child’s education," Thomasson wrote.
The judges' names came from the Scotusblog.com, which said the panel will be Reinhardt, Michael Daly Hawkins and N. Randy Smith.
Officials with the Pacific Justice Institute and others called for Reinhardt to recuse himself from the case, but he has refused.
PJI chief Brad Dacus said, "Ordinarily, the judicial system is entitled to a high degree of respect, even when we disagree with its decisions. Unfortunately, Judge Reinhardt's extreme prior decisions and his wife's active opposition to Prop. 8 make it clear to any intellectually honest observer that he cannot hear the case impartially."
Just a hear ago, Reinhardt said the federal Defense of Marriage Act was unconstitutional and he earlier ruled that students must give up their free speech if a homosexual would be offended.
"Perhaps even more troubling than Judge Reinhardt's prior decisions, his wife – the longtime head of the ACLU of Southern California – is personally involved in the case he is set to hear next Monday. Not only did she contribute financially to the 'No on 8' campaign and publicly extolled Judge Walker's decision that is scheduled to be heard by her husband, but she also strategized with attorneys for the plaintiffs," the Institute report said.