U.S. President Barack Obama is shown speaking on a television monitor during a town hall discussion on jobs and the economy hosted by CNBC at the Newseum in Washington on September, 19, 2010.  UPI/Joshua Roberts/POOL Photo via Newscom

A team of attorneys representing ProtectMarriage.com, the organization that staged a successful campaign in 2008 to have California voters define marriage as being between one man and one woman, have submitted their opening briefs to the 9th U.S. Circuit Court of Appeals, which is considering a district judge’s opinion that such a decision is improper.

And they’re quoting President Barack Obama, who has promised homosexual activists that he’ll work to eliminate barriers to which they object in society, in support of a moral basis for the institution that is credited with being the building block of all society.

The filing today came from the Alliance Defense Fund, which noted that the ruling from Judge Vaughn Walker, a homosexual, violates every precedent around.

“The district court decision conflicts with every other appellate court ruling on the federal constitutionality of marriage, including the U.S. Supreme Court,” said senior counsel Brian Raum. “The decision is an attack on the many judges and lawmakers and millions of Americans who rightly and reasonably understand that marriage is the unique union of a man and a woman.”

He said, “The Hollywood-funded opposition wants to impose – through a San Francisco court – an agenda that America has repeatedly rejected. In America, we should respect and uphold the right of the people to make policy choices through the democratic process – especially ones that do nothing more than uphold the definition of marriage that has existed since the foundation of the country and beyond.”

The brief even quoted Obama in establishing the body of authority that a moral issue such as marriage certainly can be addressed in the law.

It quoted from his 2006 address regarding renewal, where he said:

“[S]ecularists are wrong when they ask believers to leave their religion at the door before entering the public square. Frederick Douglas, Abraham Lincoln, William Jennings Bryabn, Dorothy Day, Martin Luther King – indeed, the majority of great reformers in American history – were not only motivated by faith, but repeatedly used religious language to argue for their cause,” Obama said at the time. “So to say that men and women should not inject their ‘personal moralitiy’ into public policy debates is a practical absurdity.

“Our law is by definition a codification of morality, much of it grounded in the Judeo-Christian tradition.”

“This is especially true of marriage, which the Supreme Court has long recognized has ‘more to do with the morals and civilization of a people than any other institution,'” the brief says.

However, the district judge had said neither “ethical and moral principles” nor “religious beliefs” have any legitimate role in his redefinition of marriage.

“As with other issues that are inextricably intertwined with moral values, such as the death penalty, gambling, prostitution, polygamy, and assisted suicide, legislation regarding marriage must inevitably choose between, or attempt to balance, competing moral views,” the brief said.

The 134-page brief explained how the court has jurisdiction, the proponents having standing to participate in the case, Proposition 8 does not violate homosexuals’ “fundamental right to marry,” and the voter-approved measure “furthers California’s vital interest in responsible procreation and childrearing.”

Oral arguments are scheduled the week of Dec. 6.

Walker, among other comments, had said marriage between a husband and a wife is “an artifact of a time when the genders were seen as having distinct roles in society and in marriage” but that time has gone.

He also suggested the genders of “parents” are irrelevant to children.

The brief also argued that the district judge refused to include any mention of Baker v. Nelson, “the controlling U.S. Supreme Court precedent for the legal issues.”

“And it defames as anti-gay bigots not only seven million California voters, but everyone else in this country, and elsewhere, who believes that the traditional opposite-sex definition of marriage continues to meaningfully serve the legitimate interests of society – from the current president of the United States, to a large majority of legislators throughout the nation, both in statehouses and in the United States Congress, and even to most of the scores of state and federal judges who have addressed the issue,” the brief explains.

An analyst noted that the fall of marriage could very well be key to the battle for America’s democratic system of government and religious liberty.

According to the ADF, among the issues that realistically would be impacted by the case include whether voters can decide through the democratic process that marriage between a man and a woman should be protected, whether a small core of activists can overturn the will of the majority and whether marriage will remain a unique institution for families.

Also filing a brief in the case was the organization called Advocates for Faith and Freedom, which is representing officials in Imperial County.

“The people of California have now acted twice in exercising their initiative power to define marriage as being between one man and one woman. The people’s vote has twice been challenged in the California Supreme Court and is now being challenged in the federal courts. It is a long held principle in California that it is ‘the duty of the courts to jealously guard the right of the people’ to exercise their initiative power, which is described as ‘one of the most precious rights of our democratic process,’ the filing states.

“The district court in this case failed to recognize his role as a judge as opposed to a policy maker. Before this court is an opportunity to restore the vote of over 7 million Californians by applying rational basis review, while exercising appropriate judicial restraint,” it said.

Proposition 8 was passed by voters in 2008. In his Aug. 4 decision, Walker declared it violates the rights of homosexuals under the federal Constitution.

Walker’s decision ignored the terse warning contained in state Supreme Court Justice Marvin Baxter’s dissenting opinion in the 2008 state case on same-sex “marriage.” Baxter warned of the “legal jujitsu” required to establish same-sex “marriage” by court order just a few months before California voters passed Proposition 8 and amended the constitution to limit marriage to one man and one woman.

“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 in his dissent. “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 state court decision was overturned by voters a few months later.

According to Staff Counsel Jim Campbell of the Alliance Defense Fund, one of the organizations arguing on behalf of traditional marriage advocate ProtectMarriage.com, the case really has just begun with Walker’s ruling.

Charles Cooper, the lead counsel for ProtectMarriage.com, has said, “The decision whether to redefine marriage is for the people themselves to make, not a single district court judge, especially without appellate scrutiny.”

The ADF noted some of Walker’s far-reaching conclusions that opined marriage could not be limited to one man and one woman:

  • “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.”

Liberty Counsel has called the ruling “outrageous.”

“This is a classic example of radical individualism and judicial activism. Judge Walker obviously has not learned the lesson of 2008, when the California Supreme Court refused to stay its decision on marriage. That decision was reversed in short order, but it caused a huge disruption,” said chief Mathew Staver.

The American Family Association has launched an action alert to its several million supporters calling for the impeachment of Walker.

The alert asks supporters to contact their members of Congress and demand his removal.

“What you have here is a federal judge using the power of his position to legitimize what is sexually aberrant behavior,” Bryan Fischer, an analyst for the organization, told WND. “He’s trampling on the will of 7 million voters in California. It’s just a gross breach of his judicial responsibility.

“We think of it as an expression of judicial tyranny, judicial activism on steroids,” he said.

The organization’s action alert offers to constituents an option to track down their representatives in Washington and contact them directly on the issue.


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