Judges on the 9th U.S. Circuit Court of Appeals today turned over to the California Supreme Court a question that ultimately could determine whether a homosexual judge’s decision to revoke voters’ definition of marriage as a union of one man and one woman only stands or falls.
The dispute involves Proposition 8, which was adopted by California voters in the 2008 election but has been in court ever since. A federal judge, openly homosexual Judge Vaughn Walker, ruled that the voters’ definition of marriage violated the U.S. Constitution.
But he also inserted a barb into his decision, noting that the organization that assembled the ballot issue, collected signatures to put it on the ballot and defended it originally maybe now should be thrown off the case.
His comment was because the lawsuit over the Prop 8 question names the state as a defendant, not the campaign organizing committee, and both California Attorney General Jerry Brown (now governor), and then-Gov. Arnold Schwarzenegger simply refused to defend the state law as their own procedures require.
“We request that the court answer the following question: ‘Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the state’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.'”
The question is all-important, as a state court determination that the original authors of Proposition 8 have no “standing” in the lawsuit against the state would end the case immediately with the homosexual trial court judge’s decision.
According to a statement from the Alliance Defense Fund, which has been working on behalf of Proposition 8’s supporters, that decision would, in effect, allow a politician to overrule the voters’ will on a constitutional amendment simply by refusing to do his or her job.
“Politicians should not be able to nullify a democratic act of the people by refusing their duty to defend it,” said ADF Litigation Counsel Jim Campbell. “The people of California have the right to be defended, and thus the official proponents of Proposition 8 must have standing to defend that law.
“Otherwise, the governor and attorney general will succeed in indirectly invalidating a measure that they had no power to strike down directly. With this recent development, the Alliance Defense Fund and the rest of the Protectmarriage.com legal team remain confident that the right of the people of California to protect marriage in their constitution will ultimately be honored,” he said.
Voters originally approved a state law defining marriage as one man and one woman back in 2000, only to see it undermined by the state legislature. In fact, the state Supreme Court only months before the 2008 election had struck the state law from the books.
The voters overturned that court decision in the 2008 election, but the dispute has resided in court files ever since.
“In the absence of controlling authority from the highest court of California on these important questions of an initiative proponent’s rights and interests … we believe we are compelled to seek such an authoritative statement of California law, ” the federal order said.
The court also noted that in California, “the governor has no veto power over initiatives,” which seems to be pertinent to the current case, since the administration’s refusal to defend the law in court may have effectively vetoed it.
“Although the governor has chosen not to defend Proposition 8 in these proceedings, it is not clear whether he may, consistent with the California Constitution, achieve through a refusal to litigate what he may not do directly: effectively veto the initiative by refusing to defend it or appeal a judgment invalidating it, if no one else – including the initiative’s proponents – is qualified to do so.
“The question we certify affects the ‘fundamental right’ under the California Constitution of the state’s electors to participate directly in the governance of their state. The answer to that question will also affect our ability to consider the fundamental rights under the United States Constitution asserted by plaintiffs.”
Earlier, when the California Supremes created same-sex “marriage,” Justice Marvin Baxter was alarmed in his dissent.
“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.
Those arguing officially on behalf of marriage are from ProtectMarriage.com, which was the group behind Proposition 8 when voters adopted it in 2008.
The ADF said the case has the potential to create “years of chaos and confusion in the legal battle to preserve marriage. It could impact 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 Walker, an open homosexual, who in September overruled more than seven million voters to banish Proposition 8, setting up the 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.
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WND Staff