By Diane Rufino, Aug. 17, 2010

 

Ripped from the headlines….
On August 4, a federal court in California struck down the gay marriage ban, popularly known as Proposition 8, and handed a victory to thousands of gays and lesbians who demanded they be entitled to “marry” their partners. Civil unions weren’t good enough, for in their eyes they are a “separate-but-equal” classification that made them feel like second class citizens. True equality was their desire. From plaintiffs’ standpoint, the title of marriage is an intangible right and California had no legitimate reason to deny it to them. It was an Equal Rights lollapalooza out in California. Round one went to Kristen Perry and her partner Sandra Stier and to Paul Katami and his partner Jeffrey Zarrillo, all plaintiffs in this litigation, Perry v. Schwarzenegger. And of course, to their esteemed attorneys, Theordore Olson and David Boies (both regular litigators in front of the Supreme Court). Oh, and did I mention that the judge is openly gay.

Judge Vaughn R. Walker, who was appointed to the federal bench by Ronald Reagan in 1987 and then promoted by George H.W. Bush to sit on the U.S. District Court, had no problem declaring that “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. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

Proposition 8 is the California state constitutional amendment voted upon by the majority of the people in the state to preserve the traditional definition of marriage. The constitutional amendment represented the will of the people themselves after the state legislature removed the words “between a man and a woman” from the definition of marriage in the California Family Code (which itself had also been a popular initiative). As Douglas Napier, an attorney with the Alliance Defense Fund who defended Proposition 8, commented: “The whole nation is watching, and the whole nation should be quaking to think that a single judge sitting in California can reverse the will of 7 million voters.” He scolded the judge for making the case more about gay rights than about voters’ rights. Brian Brown, president of the National Organization for Marriage, said: “With a stroke of his pen, Judge Walker has overruled the votes and values of 7 million Californians who voted for marriage as one man and one woman.”

Although the judge in Perry found in favor of the gay and lesbian plaintiffs, he didn’t authorize state officials to begin issuing marriage licenses to homosexual couples. Rather, he delayed same-sex marriage until August 18, 2010 in order to permit an appeal to be filed, which it did on Aug. 14. But on Aug. 16, the US Court of Appeals for the Ninth Circuit (in San Francisco), put same-sex weddings in California on hold indefinitely while it reviews Walker’s decision and considers the constitutionality of the state’s gay marriage ban. The US Court of Appeals for the Ninth Circuit is one of the more progressive of federal appeals court. At the federal appellate level, a 3-member judicial panel is selected, and those members are randomly selected (from a group of 27 appellate judges), as is the practice. So everything will depend upon which 3 judges will be randomly picked to sit on the panel. Legal experts believe that if the ruling is affirmed on appeal, the U.S. Supreme Court would almost certainly take up the case and establish law for the rest of the country. If the appeals court reverses the decision and restores the ban, it is most likely that the Supreme Court may leave the case alone.

This case will likely make it to the Supreme Court where the decision of our nine Justices, like Greek Gods on Mount Olympus, could set societal policy that might potentially forever affect us mortals. A decision by the Supreme Court could establish new legal analysis which eventually will be binding on all states. It could potentially change the landscape of our society and bring about fundamental change that will shock our traditional notions of family, child-rearing, and disciplined living, and bring about the destruction of the religious principles that for over 220 years have guided the order of our society and guided human conduct. Perhaps in order that our social conscience be purged of any guilt, all boundaries in society need to be blurred and erased. Maybe that is our destiny. Perhaps our very freedoms are the downfall of our moral and ordered society.

We have all read the news and picked up on the major talking points of this decision out in California. We all sense that this issue of gay marriage is destined for a show down in the Supreme Court. Those opposed to gay marriage and the elevation of same-sex unions to equality with opposite-sex unions don’t know if they should be glad or they should be nervous. For who truly knows how the Gods will decide. Are we indeed witnessing a cultural shift in the country? Is this issue of gay marriage finally “ripe” for the Supreme Court to hear it? We know the court has declined to take up the issue in the past, but who knows. How many states need to find equal rights violations in their constitutions with respect to their rights and respects of marriage before the Court feels it needs to weigh in on the issue? How long will the Court tolerate piecemeal solutions all around the country? Will it finally decide to take the opportunity, as it did in Brown v. Board of Education, to end discrimination and establish forcibly establish a remedy for homosexuals ?

I have read the entire 144-page decision and I wanted to share all the arguments and considerations that were made by the court so that we can all know what the issues are that courts are reviewing and discussing. So to this end, I apologize for the detail and for the in-depth legal analysis, which may put many to sleep. Our society may soon change, thanks to more progressive thinking in the courts these days, and I think it is important for us to know why that change may take place and how it may happen. As I discuss the evidence in the case, the testimony of experts, reports, studies, arguments, and issues, please take special note of the weight the judge (again, an openly-gay judge) consistenly gives, to those which advance his own personal cause while discrediting and even downright dismissing those which touch on those which support traditional marriage. At the end, I will attempt to make a few arguments that were not brought up in the case but which seem important, at least to me.

First let’s look at how Proposition 8 came into being, for this is an example of the process of how state citizens can attempt to make their voices known on policy matters other than through the election of candidates they “hope” will honor their voices in government. In the 1970s, several gay and lesbian couples sought marriage licenses in California, relying on the amended language in Calif. Civil Code § 4101 (which had taken out language specifying marriage between “a man and a woman”). In response, in 1977, the legislature amended the marriage statute, former Calif. Civil Code § 4100, to read “Marriage is a personal relationship arising out of a civil contract between a man and a woman….” That provision became Calif. Family Code § 300. The legislative history of the enactment supports a conclusion that legislators wanted to honor the unique roles of a man and a woman in marriage. In November 2000, the voters of California adopted Proposition 22 through the state’s initiative process. Officially entitled the “California Defense of Marriage Act,” Proposition 22 amended the state’s Family Code by adding the following language: “Only marriage between a man and a woman is valid or recognized in California.” [Calif. Family Code § 308.5]. This amendment further codified the existing definition of marriage as “a relationship between a man and a woman.

At the end of 2003-beginning of 2004, at the direction of Mayor Gavin Newsom, the Office of the County Clerk of San Francisco designed revised forms for its marriage license application, license, and marriage certificate, and on February 12, 2004, the City and County of San Francisco began issuing marriage licenses to same-sex couples. On February 13, two organizations, the Proposition 22 Legal Defense and Education Fund, and the Campaign for California Families, filed actions in San Francisco Superior Court, a state court, seeking an immediate stay to prohibit the City from issuing marriage licenses to same-sex couples. [The term “stay” is a legal term meaning to block impending legal action]. The Superior court refused to grant the groups’ request for an immediate stay, and the City and County continued to issue marriage licenses to same-sex couples. The California Attorney General and a number of taxpayers then filed two separate petitions seeking to have the California Supreme Court issue an original writ of mandate, asserting that the City’s actions were unlawful and warranted the court’s immediate intervention. On March 11, 2004, the California Supreme Court indeed ordered San Francisco officials to acknowledge and enforce the existing marriage statutes and to refrain from issuing the licenses. An action was then brought in federal court (the same US District court that decided Perry), in which the court officially declared that the conduct of the San Francisco officials was unconstitutional. That case was Lockyer v. City and County of San Francisco. That court refused to address the underlying issue, whether the statutes, Family Code § 300 and Proposition 22, were unconstitutional, but advised those who supported same-sex marriages that they should feel free to bring an action challenging the constitutionality of the marriage laws. [I think that might have been an open invitation.. “If you come to me with that question, I promise I’ll strike the law down.”] Accepting the invitation from the openly-gay judge (duh !!), the City and County of San Francisco then filed a Petition for writ of mandate in Superior Court, seeking a declaration that “all California statutory provisions limiting marriage to unions between a man and a woman violate the California Constitution.” Six actions were consolidated into a single proceeding called In re Marriage Cases.

In In re Marriage Cases, the court finally addressed the constitutionality of the Family Code statutes. In that case, the issue before the court was not whether it is constitutionally permissible under the California Constitution for the state to limit marriage only to a man and a woman, but rather whether the state constitution prohibits the state from establishing a statutory scheme to distinguish between the types of unions permitted between heterosexual couples and between homosexual couples. In the state of California, as it is with several states, the legal union between a man and a woman is designated a “marriage” while the legal union between a male and another male, or a female and another female, is designated as a “domestic partnership.” Note that a domestic partnerships under California law grants same-sex couples all of the legal rights and responsibilities assigned to ”married” couples. So basically, the court was only asked to determine whether the difference in the official names of the relationships violates the California Constitution.
(Domestic partners under California law mirror those for “civil unions” in the states of Connecticut, New Hampshire, New Jersey, and Vermont. They are equally as comprehensive in the nature and extent of the rights afforded).

The court, in In re Marriage Cases held: “In light of all of these circumstances, we conclude that retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling under the strict scrutiny equal protection standard and does not justify withholding that status from same-sex couples. Accordingly, insofar as the provisions of § 300 and § 308.5 draw a distinction between opposite-sexcouples and same-sex couples and exclude the latter from access to the designation of marriage, we conclude these statutes are unconstitutional.” The court concluded that the bans on same-sex marriage create an impermissible classifications of persons based on sexual orientation which violates the Equal Protection clause. Hence the court struck down both Family Code statues – § 300 and § 308.5. According to the court, allowing opposite-sex couples to be joined in marriage while allowing same-sex couples to be joined only in domestic partnerships denied the latter equal dignity in the recognition of their relationships. (As we will see, this will become the plaintiffs’ central argument in the present case, the Perry case).

In 2008, in response to the court’s decision in In re Marriage Cases, the language “between a man and a woman” was stricken from § 300. The California’ Defense of Marriage Act (§ 308.5 or Proposition 22) was stricken in its entirety. In 2008, California eliminated its statutory scheme to reserve marriage for heterosexual couples. It ended its statutory scheme which made determinations as to who can “marry” based on the gender of the spouse. The people of the state of California were not happy about this. They felt they had no say in the matter. Persons who value the traditional notions of marriage particularly felt their concerns were minimized. Consequently, Proposition 8, which created an amendment to the state constitution which defines marriage as between “a man and a woman,” was then put on the election ballot for the people of California to decide and to make their voice democratically known. In November of 2008, it was adopted. Proposition 8 added a new provision, Section § 7.5 of the Declaration of Rights, to the California Constitution, which provides that “only marriage between a man and a woman is valid or recognized in California.” (Proposition 8 essentially copied the same language as Proposition 22, except that now the people had spoken to add that language directly to their state Constitution). From June 17, 2008 until the passage of Proposition 8, San Francisco and other California counties issued approximately 18,000 marriage licenses to same-sex couples.

Proponents of the constitutional amendment, Proposition 8, argued that marriage reserved only for a man and a woman was “an essential institution of society” and that leaving the constitution unchanged (ie, allowing homosexuals to marry) would “result in public schools teaching our kids that gay marriage is okay.” Furthermore, they argued that “gays do not have the right to redefine marriage for everyone else.” Opponents, on the other hand, argued that “the freedom to marry is fundamental to our society,” and that the California constitution “should guarantee the same freedom and rights to everyone.” (Of course, disregarding the fact that the same rights and privileges are indeed granted by domestic partnerships). Opponents were not happy that the state constitution “mandates one set of rules for gay and lesbian couples and another set for everyone else” and so they cried “Equal Protection violation !!” Thus the scene was set for Perry v. Schwarzenegger.

So just to be clear, these lawsuits are NOT simply about getting equal rights and equal social and financial benefits as a legally- recognized couple; they are about full equality.

It is with this introduction that we now look closely at Perry, as all eyes are now watching what the courts decide. The persons who brought the case (plaintiffs) are two homosexual couples: Kristin Perry and her girlfriend Sandra Stier, and Jeffrey Zarrillo and his boyfriend Paul Katami. Both couples are in committed relationships (but only the lesbian couple involve children) and both couples have been denied marriage licenses on the basis of Proposition 8. The couples challenged Proposition 8 [now Calif. Constitution Article I, § 7.5], claiming it deprives them of their Due Process and Equal Protection rights under Section 1 of the Fourteenth Amendment. Judge Walker agreed and on August 4, struck Proposition 8 down as unconstitutional, and consequently, as unenforceable.

The plaintiffs’ case was argued by two of the most famous and well-respected attorneys in the country, David Boies and Theodore B. Olson. They actually faced each other in the 2000 Supreme Court battle between George W. Bush and Al Gore over the Florida recount (the “hanging chads”) and the Presidency. Ted Olson advocated for Bush and won the case. [He also lost his beautiful and brilliant wife, Barbara, a lawyer and conservative TV commentator for Fox News and CNN, on 9/11 when her plane crashed into the Pentagon]. After the decision in Perry was announced, Mr. Olson spoke publicly, calling the decision “a victory for the American people,” and anyone who had been denied rights “because they are unpopular, because they are a minority, because they are viewed differently.” Perhaps Mr. Olson would like to start taking on some cases for Christian groups, because they have been steadily “denied rights” since 1947 and have been the target of hate groups and liberals. Andrew Pugno, a lawyer for ProtectMarriage.com, represented the proponent’s position.

Plaintiffs gave different reasons why they wish to be married, as opposed to united through a civil union (termed “domestic partnership”). One couple said they wished to avoid the awkwardness that arises say when they go to open a joint bank account. The other couple stated: “Marriage would be a way to tell “our friends, our family, our society, our community, our parents, and each other that this is a lifetime commitment.. That we are not girlfriends. We are not partners. We are married.”

Plaintiffs claimed that they were denied their due process rights under the Fourteenth Amendment (which provides that “State shall deprive any person of life, liberty, or property, without due process of law”) because their freedom to “marry” the person of their choice was violated by Proposition 8. Plaintiffs claim that the right to marry is a fundamental right, protected by their state constitution. Specifically, plaintiffs alleged a due process violation because: (1) Proposition 8 prevents each plaintiff from marrying the person of his or her choice; (2) One’s choice of a marriage partner is protected by the Fourteenth Amendment from the state’s unwarranted regulation of that choice; and (3) California’s provision of a domestic partnership (a status giving same-sex couples the same rights and responsibilities of marriage without providing the actual ‘title’ of marriage) does not afford plaintiffs an adequate substitute for marriage and, by disabling plaintiffs from marrying the person of their choice, invidiously discriminates, without justification, against plaintiffs and others who seek to marry a person of the same sex.

Plaintiffs claimed that they were denied their equal protection rights under the Fourteenth Amendment (which provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws”) because Proposition 8 classifies them into a suspect classification and singles them (and other gays and lesbians) out for unequal and unfair treatment. They claimed that because Proposition 8 denies gays and lesbians alone as persons who can’t marry the person on their choice, it discriminates unfairly and based upon stereotypes.
Finally, Plaintiffs concluded that because Proposition 8 is enforced by state officials acting “under color of state law” (meaning in their official capacity) and because its effect is to deny them their Constitutional rights, Proposition 8 is actionable under 42 USC § 1983. The remedy they were demanding was a declaration from the court that Proposition 8 is unconstitutional and therefore unenforceable and an immediate injunction against its enforcement so they could go ahead and get married.
There were two sets of parties defending the State and Proposition 8: (1) Defendants (the named parties, including Governor Arnold Schwarzenegger, the state attorney general Jerry Brown, and other state officials who all declined to defend the law; and (2) Proponents (other parties that are “interested” and who wished to intervene because they have a vested interest in the case, including ProtectMarriage.com and its founders) who were the actual parties which defended the law. It’s a sad day when the man who once played Conan the Barbarian and the Terminator turns out to be a wuss. Hey Arnold, what good is having all those muscles if you have no cajones? Luckily for the people of California who voted and had a vested interest in Proposition 8, ProtectMarriage.com came to their defense. It was ProtectMarriage.com which organized the official campaign to pass Proposition 8. It was Proponents who submitted the ballot description and argument for Proposition 8. That argument stated: “Proposition 8 is simple and straightforward…. Proposition 8 is about preserving marriage; it’s not an attack on the gay lifestyle…. It protects our children from being taught in public schools that “same-sex marriage” is the same as traditional marriage.…. While death, divorce, or other circumstances may prevent the ideal, the best situation for a child is to be raised by a married mother and father….. If the gay marriage ruling of the California Supreme Court is not overturned, TEACHERS COULD BE REQUIRED to teach young children there is no difference between gay marriage and traditional marriage. We should not accept a court decision that may result in public schools teaching our own kids that gay marriage is ok… While gays have the right to their private lives, they do not have the right to redefine marriage for everyone else.”

Proponents defended Proposition 8 on the grounds that it:
(1) Maintains California’s definition of marriage as excluding same-sex couples;
(2) It preserves the traditional meaning of marriage as it has always been defined in the English language;
(3) It preserves the traditional social and legal purposes, functions, and structure of marriage;
(4) It affirms the will of California citizens to exclude same-sex couples from marriage;
(5) It promotes stability in relationships between a man and a woman because they naturally (and at times unintentionally) produce children;
(6) It promotes the optimal environment (that is, in households with a man and wife) for child-rearing; and
(7) It allows the state to proceed with caution when implementing social changes.

They argued that Proposition 8 should be evaluated in light of the “central purpose of marriage, in California and everywhere else,…. to promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation.” As they explained: “responsible procreation is really at the heart of society’s interest in regulating marriage.” Furthermore, they asserted that marriage for same-sex couples is not implicit in the concept of ordered liberty and thus its denial does not deprive persons seeking such unions of due process. Nor, proponents continued, does the exclusion of same-sex couples in California from marriage deny them equal protection because, among other reasons, California affords such couples a separate and equal (a parallel) institution under its domestic partnership statutes.

The judge criticized proponents for weak and bigoted arguments and commented that their case basically hinged on the argument that marriage should be protected because of procreation. The judge went so far as to paraphrase their argument as follows: “Proponents’ procreation argument, distilled to its essence, is as follows: ‘the state has an interest in encouraging sexual activity between people of the opposite sex to occur in stable marriages because such sexual activity may lead to pregnancy and children, and the state has an interest in encouraging parents to raise children in stable households.’ The state therefore, according to their argument, has an interest in encouraging all opposite-sex sexual activity, whether responsible or irresponsible, procreative or otherwise, to occur within a stable marriage, as this encourages the development of a social norm that opposite-sex sexual activity should occur within marriage. Entrenchment of this norm increases the probability that procreation will occur within a marital union. Because same-sex couples’ sexual activity does not lead to procreation, according to proponents the state has no interest in encouraging their sexual activity to occur within a stable marriage. Thus, according to proponents, the state’s only interest is in opposite-sex sexual activity.”

It is interesting, in a disturbing way, to note in the Judge’s decision how he referred to and characterized proponents. Basically he viewed them as bigoted, morally righteous, and outwardly discriminatory. He accused them of intentionally perpetuating invidious stereotypes to advance their agenda. As the judge described: “Proposition 8 campaign presented to the voters of California a multitude of television, radio and internet-based advertisements and messages. The advertisements conveyed to voters that same-sex relationships are inferior to opposite-sex relationships and dangerous to children. The premises on which Proposition 8 was presented to the voters which gave him cause for concern were the ones as follows:
(1) Denial of marriage to same-sex couples preserves marriage; (he didn’t buy it. Didn’t think it was a compelling argument)
(2) Denial of marriage to same-sex couples allows gays and lesbians to live privately without requiring others, including (perhaps especially) children, to recognize or acknowledge the existence of same-sex couples; (he found this insulting)
(3). Denial of marriage to same-sex couples protects children; (he claimed this allegation was based on cruel stereotyping)
(4). The ideal child-rearing environment requires one male parent and one female parent; (he didn’t buy this one either)
(5). Marriage is different in nature depending on the sex of the spouses, and an opposite-sex couple’s marriage is superior to a same-sex couple’s marriage; (he found this argument had no merit)

During the trial, plaintiffs aggressively attacked the “procreation” and the “benefits of a traditional marriage” arguments. They argued that “there has never been a requirement that a couple produce children in order to have a valid marriage. Of course, people beyond procreative age have always been allowed to marry… Procreative ability has never been a qualification for marriage.” They offered evidence from experts on marriage, sociology and political science, and emotional testimony from the two couples who had brought the case. The judge was pleased with their evidence and their testimony. He gave great weight to all of it. Proponents of Proposition 8, on the other hand, offered a much more straightforward defense of the measure, as outlined above, saying that same-sex marriage damaged traditional marriage as an institution and that marriage was historically rooted in the need to foster procreation, which same-sex unions cannot, and was thus fundamental to the existence and survival of the human race. The judge found proponents’ arguments to be without merit, as I’ll go into a bit more below.

Plaintiffs put together a comprehensive case. They called lots of experts, presented lots of data, and showed lots of studies. Plaintiffs introduced several witnesses who argued that the primary purpose of Proposition 8 was to ensure that California confer a policy preference for opposite-sex couples over same-sex couples. They went even further. They introduced witnesses who testified that they believed the promotion and advertising of Proposition 8 was based on a moral judgment – a belief that same-sex pairings are immoral and should not be encouraged in California. They were offended that religious values were used to promote Proposition 8 (duh !!) How such witnesses were allowed to offer such testimony is amazing to me.

Historian George Chauncey, taking the stand for the plaintiffs, testified about a direct relationship he believes exists between the Proposition 8 campaign and initiative campaigns from the 1970s which targeted gays and lesbians. Like the earlier campaigns, according to Chauncey, the Proposition 8 campaign emphasized the importance of protecting children from the effects of gays and lesbians. He claimed that such campaigns were based on stereotypical images of gays and lesbians, despite the lack of any evidence showing that gays and lesbians pose a danger to children. He testified that because homosexual conduct was criminalized, gays and lesbians were seen as criminals, as predators or child molesters; the stereotype of gay people as such therefore became pervasive. Proponents challenged this preposterous allegation aggressively and noted that no evidence could be offered to support Chauncey’s position. But as previously noted, the Judge was persuaded by the stereotyping argument.

Proponents put on two expert witnesses (social scientists Kenneth Miller and David Blankenhorn) who discussed the benefits to society of the traditional marriage relationship and the benefit it provided to child-rearing. As expected, plaintiffs accused them of trying to substitute their moral judgment for everyone else, just as they accused the defendants (including the people of California) and proponents. Furthermore, plaintiffs accused the witnesses of improperly trying to insert religious morals into the matter and forcing. For example, plaintiffs questioned Miller on data he presented which showed that 84 % of those who attend church weekly voted “Yes” on Proposition 8, 54% of those who attend church occasionally voted “No,” and 83% of those who never attend church also voted “No.”

As if taking a cue from the plaintiffs, Judge Walker questioned whether the evidence put forward by the proponents showed anything other than a private moral view without any other purpose which could possibly advance a legitimate government (state) interest. As the judge emphasized repeatedly, a state’s interest in a particular enactment of law must be secular (non-religious) in nature. He commented that “the state has no interest in enforcing private moral or religious beliefs without an accompanying secular purpose.” He cited cases Lawrence v Texas (2003) and Everson v. Board of Education (1947). Proponents, and any right-thinking family-minded person, would have thought proponents advanced a strong legitimate state interest in their arguments for keeping marriage true to its traditional form, including the need to encourage procreation, to honor the traditional relationship between a man and a woman which leads to natural conception and procreation, and to promote and respect traditional notions of child-rearing (for all of society’s benefit and not just the benefit of gays and lesbians).

A big part of plaintiff’s case centered around discrediting the argument for placing emphasis on traditional family values and traditional gender and family roles. They did so by showing how the notions embraced by “traditional” marriage had transformed over the years. They attempted to show that marriage doesn’t necessary reflect traditional values and roles any longer. In other words, plaintiffs were criticizing proponents for wanting to maintain “traditional” marriage and “traditional” roles when these things don’t even exist anymore. The court bought into that line of analysis, hook, line, and sinker. (If you read any of the snippets of the case, as reported in the news, you will note that this argument received much attention and emphasis). As plaintiffs argued and as the court reasoned, marriage between a man and a woman was indeed traditionally organized based on presumptions of a division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family. But the historical basis for marriage no longer exists. For example, the most important historical feature of marriage, aside from having children and raising a family, was the public assumption of a relationship of rights and duties. Plaintiffs noted several examples of trends which transformed “traditional” marriage in the US: (1) racial restrictions on an individual’s choice of a marital partner were only declared unconstitutional under the US Constitution in 1967 (and unconstitutional under the CA Constitution in 1948); (2) the move from “coverture” (where a woman’s legal and economic identity became dominated by her husband’s upon marriage) to non-coverture (such domination is no longer part of the marital bargain); (3) the advent of “no-fault” divorce, which shows that we are willing to easily destroy the family unit; and (4) there is no longer any requirement that children be “biological” or “conceived.” Marriage has thus transformed from a male-dominated institution into an institution recognizing men and women as equals. Roles can be flipped, shared, substituted,… you name it. Yet, as plaintiffs argued, even with all these changes, individuals retained the right to marry; that right did not become different simply because the institution of marriage became compatible with gender equality.

Plaintiffs also argued that there is no evidence to show that California has an interest in differentiating between same-sex and opposite-sex unions. As absurd as that sounds, Judge Walker agreed wholeheartedly. Encouraging procreation and respecting that special and biological union that in fact can lead to procreation held no weight in Walker’s mind. Darwin must have been rolling over in his grave. I shudder to think what God was feeling. A psychologist testified for the plaintiffs to explain that homosexuality is a normal expression of human nature. He explained that homosexuality is a normal expression of human sexuality and that the vast majority of gays and lesbians have little or no choice in their sexual orientation. Too bad that proponents didn’t think to challenge this quack on the all-too-common realities of “experimentation” of “fluidity” (whereby individuals change or alter their sexual orientation however the wind blows). Perhaps the psychologist forgot neglected to consider college campuses, bars, and Girls Gone Wild. Furthermore, it’s too bad that proponents didn’t call a student of Charles Darwin as an expert to show what would happen if gays and lesbians were allowed to go off on their own, with their same-sex partners. Maybe that expert could have discussed the term “evolutionary cul-de-sac” and explain what biology says about homosexuality. OK, so that’s my term. I would have gladly testified in the case. But rather than address these very legitimate issues that any normal government and society should embrace, the court focused more on such testimony as the plaintiff’s sociologist who testified about the harm gays and lesbians have experienced because of Proposition 8. The expert explained that Proposition 8 stigmatizes gays and lesbians because it informs gays and lesbians that the State of California rejects their relationships as less valuable than opposite-sex relationships. He accused Proposition 8 of providing state endorsement of private discrimination. (Of course , the harm that homosexuality causes to parents who are trying to raise their children with productive and healthy values receives no attention).

Once they convinced the court that traditional gender roles and family roles have been transformed, and once they convinced the court that California has no legitimate interest in differentiating between same-sex couples and opposite-sex couples, plaintiffs then went on to argue that the state has a vested interest in fostering marriage, in general, regardless of partners. According to them, those interests include:
1) Organizing individuals into cohesive family units
2) Recognizing a realm of intimacy and liberty
3) Creating stable households
4) Legitimizing children (“I have a Mommy and a Mommy”)
5) Assigning individuals (legally) to care for one another and thus limit the public’s liability to care for the “vulnerable”
6) Facilitating property ownership
7) Assigning economic support obligations
8) Improving the health, both physical and mental, of its citizens. (married persons live longer and are happier. Happier? Who says? Plaintiffs show studies to show there is less depression and a decreased willingness to engage in health risks, such as smoking and alcohol abuse)
9) Having the benefits of marriage (both tangible and intangible) flow to the children of married couples.

What about civil unions and domestic partnerships as a suitable alternative? There was no dispute from plaintiffs that “domestic partnerships” in fact provide the same legal rights and responsibilities and benefits as a marital union. So why do gays and lesbians still push for equality in marriage? Why do they insist on diluting the religious and moral significance that is and has historically and traditionally been associated with this particular union? Well, plaintiffs suggested that domestic partnerships cannot substitute for marriage because domestic partnerships do not have the same social and historical meaning as marriage and that much of the value of marriage comes from its social meaning. They presented several experts who claimed that California’s gay and lesbian population suffer emotionally and psychologically because domestic partnerships are not equivalent to marriage. They testified that domestic partnerships actually stigmatize gays and lesbians even when enacted for the purpose of providing rights and benefits to same-sex couples. It was this argument that truly hooked Judge Walker.

Would you believe that the plaintiffs also tried to push the argument that Proposition 8 needs to be struck down because San Francisco, and California as a whole, is feeling economic ‘harms’ and the state could really use the financial boost that gay weddings would provide. What ?? While they had Judge Walker’s attention, I guess they decided to throw everything they could his way…. everything but the kitchen sink.

In light of all the arguments and the expert testimony and the counterarguments, and the obvious lack of objectivity the judge was able to show in the case, it came as no surprise when Judge Walker made his Findings of Fact (some of which I’ve already addressed above) and Conclusions of Law to reach his conclusion. Walker concluded that California has no interest in differentiating between same-sex and opposite-sex unions, nor any legitimate interest that it was able to substantiate. Rather, the judge concluded, that “the evidence showed that Proposition 8 was enacted by a private moral view without actually advancing any legitimate government interest. And as such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.” He continued: “The evidence presented at trial fatally undermines the premises underlying proponents’ proffered rationales for Proposition 8. An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. The testimony of several witnesses disclosed that a primary purpose of Proposition 8 was to ensure that California confer a policy preference for opposite-sex couples over same-sex couples based on a belief that same-sex pairings are immoral and should not be encouraged in California.”

Judge Walker also concluded that the only purpose of Proposition 8 was to deny gays and lesbians the right to marry and to continue to stigmatize them by:
1). Reminding them that society doesn’t value their long-term relationships as they do those between a man and a woman;
2). Singling out gays and lesbians and legitimizing their unequal treatment;
3). Perpetuating the stereotype that same-sex couples cannot properly raise a child;
4). Reserving the most socially-valued form of relationship (marriage) only for couples comprising a man and a woman;
5). Requiring California to treat same-sex couples differently from opposite-sex couples;
6). Continuing the long history of discrimination against gays and lesbians
7). Reinforcing the religious belief that gays and lesbian relationships are sinful (“The Bible clearly teaches that homosexual behavior is an abomination and shameful before God.”

With respect to plaintiffs’ legal challenges, Walker concluded in their favor on all counts. According to his analysis and his conclusions, Plaintiffs indeed had been deprived of their due process and equal protection rights in not being allowed to marry their same-sex partners. They indeed had been denied their fundamental freedom to receive a marriage license with the partner of their choice. And they indeed had been discriminated against by Proposition 8 which classified them as having an “impermissible sexual orientation” to be married.

Due process protects individuals against arbitrary governmental intrusion into life, liberty or property. [Washington v Glucksberg, at pp. 719-720]. Fundamental freedoms are considered “liberty” under this clause and if any such freedom is unfairly or illegitimately denied, there is a potential Due Process violation. When legislation burdens the exercise of a right that is deemed to be fundamental, the government must show that the intrusion withstands strict scrutiny. (ie, the toughest degree of scrutiny). Walker asserted that the right to marry is a fundamental right under the US Constitution and the California Constitution and apparently none of the defendants or proponents disputed that. [As I will discuss a bit later, the state of New Jersey in the case Lewis v. Harris, concluded that the right to marriage is NOT a fundamental right as afforded by the NJ state constitution (which mirrors the rights in the US Constitution)]

To determine whether a right is fundamental under the due process clause (and hence applicable to the states through the Fourteenth Amendment), the legal analysis begins by asking whether that right is rooted “in our Nation’s history, legal traditions, and practices.” [ Washington v. Glucksberg, at pg 710]. Here, even though the parties all agree that the right to marry is fundamental, the court still needs to look to the evidence presented at trial to determine: (1) the history, tradition and practice of marriage in the United States; and (2) whether plaintiffs seek to exercise their right to marry or seek to exercise some other right.
[Note: Not all fundamental rights are necessarily applicable to the states through the Fourteenth Amendment…. only those deeply-rooted in our Nation’s history and traditions. Cases have interpreted the “privileges or immunities of citizens of the United States” clause of Section 1 of the Fourteenth Amendment (aka “the Incorporation Clause”) to mean that only those certain rights so firmly-rooted in our history and traditions are the kinds of “privileges or immunities” that the states can’t deny its citizens. All the First Amendment rights and criminal rights, and just recently the Second Amendment, have been deemed to be “incorporated” to the States. That is how government was able to get religion out of state schools so quickly and uniformly].

Marriage has retained certain characteristics throughout the history of the United States. Marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household. The spouses must consent to support each other and any dependents. The state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace. The state respects an individual’s choice to build a family with another and protects the relationship because it is so central a part of an individual’s life. But the state has never inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse. Walker wrote: “The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.” He therefore concluded that the right to marriage is a fundamental right rooted in history and traditions and hence embraced by the Due Process Clause.

Having determined that plaintiffs have the right to marry under the Due Process clause, Judge Walker then addressed the question of whether California’s obligation to allow gays and lesbians to marry is met by registered Domestic Partnerships. To that question, Judge Walker answered NO. He concluded that domestic partnerships do not fulfill California’s due process obligation to plaintiffs for two reasons. First, domestic partnerships are distinct from marriage and do not provide the same social meaning as marriage. Second, domestic partnerships were created specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples. They exist solely to differentiate same-sex unions from marriages. And it is this differentiation thing that Judge Walker had such a problem with. So, since Walker concluded that domestic partnerships weren’t an equivalent alternative, Proposition 8 in fact presented plaintiffs with a denial of a fundamental right.

A piece of legislation or any other enactment, like Proposition 8 here, can burden fundamental rights but still not be deemed unconstitutional as long as it is able to withstand strict constitutional scrutiny. And that is what Walker had to decide. First off, Walker made clear that just because the majority of California voters supported Proposition 8, it has no bearing on the analysis. It is irrelevant. “Fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.’ “ [West Virginia State Board of Education v Barnette, at pg. 638]. Under the Supreme Court’s strict scrutiny analysis, California bears the burden of producing evidence to show that Proposition 8 is narrowly tailored to a compelling government interest. The judge concluded that the people’s amendment could not stand strict scrutiny, BUT hinted that had defendants argued that domestic partnerships satisfies plaintiffs’ fundamental right to marry (hence meeting the “narrowly tailored” requirement), the analysis might have gone a little differently.

Equal Protection was the easier analysis for the court to make. And again, under an Equal Protection analysis, Judge Walker also found Proposition 8 to be in violation, and hence unconstitutional. The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” A law may create certain classifications of people, but to withstand constitutional muster, there must be assurances that the classifications are not drawn “for the purpose of disadvantaging the group burdened by the law.” [Romer v. Evans, at 633]. The classification itself must be related to the purported interest. (think immigration !!)

Plaintiffs alleged that Proposition 8 discriminates both on the basis of sex and on the basis of sexual orientation. In this case, sexual orientation actually equates to sex discrimination as well. I can explain this by using an example: Kristin Perry is prohibited from marrying her partner Sandra Stier, a woman, because Perry is a woman. If Stier were a man, Proposition 8 would not prohibit the marriage. Thus, Proposition 8 operates to restrict Perry’s choice of marital partner because of her sex. But Proposition 8 also operates to restrict Perry’s choice of marital partner because of her sexual orientation; her desire to marry another woman arises only because she is a lesbian.

Typically, the court would look at the classification of groups that Proposition 8 creates in order to determine how strict the Equal Protection analysis must be performed. The more the classification is identified with cruel and harmful stereotypes, the more “heightened” the analysis will be. But Judge Walker said that such analysis wasn’t even necessary because Proposition 8 was so offensive that it the Equal Protection Clause renders it unconstitutional under any standard of review. He wrote: “Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect.” When the court asked the defendants for a good and fair reason why the state of California needed to identify a difference between heterosexuals and homosexuals in crafting Proposition 8, proponents (ProtectMarriage.com) pointed only to the fact that opposite-sex couples are capable through sexual intercourse of producing offspring while same-sex couples are incapable of doing so. The court was unconvinced since proponents failed to advance any reason why the government could use sexual orientation as a proxy for fertility or why the government may even need to take into account fertility when legislating.

Proponents put forth several rationales for Proposition 8, including: (1). preserving marriage as a union between a man and a woman (as it has always been defined) and excluding any other relationship from such a relationship; (2) preserving the traditional social and legal purposes, functions, and structure of marriage; (3) serving as a caution not to implement social change too quickly or recklessly; (4) promoting opposite-sex parenting over same-sex parenting; and (5) protecting the freedom of those who oppose marriage for same-sex couples. The court had to determine if any of them advanced a legitimate state interest, and as I explained earlier, Walker shot down all proponents’ arguments. He found them all without sufficient merit. Of course, that’s not how heterosexuals see things. The lack of respect and attention that was given to any rights or interests that heterosexuals (family people who know how hard it is to raise children these days and especially with all the negative external stimuli out there) presented was astounding to me. I am hoping that it is this lack of deference to these important arguments which will cause the federal appeals court to take notice.

For example, Judge Walker dismissed proponents’ ‘history’ or ‘tradition’ argument by writing: “Tradition alone cannot form a rational basis for a law. [Williams v Illinois, at 239]. The “ancient lineage” of a classification does not make it rational. Rather, the state must have an interest apart from the fact of the tradition itself. The evidence shows that the tradition of restricting an individual’s choice of spouse based on gender does not rationally further a state interest despite its “ancient lineage.” Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. California has eliminated all legally-mandated gender roles except the requirement that a marriage consist of one man and one woman. Proposition 8 thus enshrines in the California constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.” He then concluded that the tradition of restricting marriage to opposite-sex couples does not further any state interest. He also concluded that the evidence shows that same-sex marriage has no adverse effects on society or the institution of marriage.

Another example which shows Walker’s personal bias is when he wrote: “Rather, the evidence shows that Proposition 8 harms the state’s interest in equality, because it mandates that men and women be treated differently based only on antiquated and discredited notions of gender.” He mentioned nothing about the need to uphold traditional values and traditional notions of marriage for the sake of procreation and child-rearing. I think this also shows his activist approach to the case, rather than true legal analysis for his statement shows a complete disregard for biological, psychological, and religious foundations for ‘notions’ of gender. Walker went so far to state that ”California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples.”

ProtectMarriage.com (Proponent) defended Proposition 8 and its popular mandate by arguing that Proposition 8 protects the First Amendment freedom of those who disagree with allowing marriage for couples of the same sex. As attorney Pugo argued: “Proposition 8: (1) preserves the prerogative and responsibility of parents to provide for the ethical and moral development and education of their own children”; and (2) accommodates “the First Amendment rights of individuals and institutions that oppose same-sex marriage on religious or moral grounds.” Judge Walker, however, disagreed. In fact, he shut this argument down flat, writing that that such interests fail “as a matter of law.” His position is that Proposition 8 doesn’t affect any First Amendment right or responsibility of parents to educate their children. [He cited In re Marriage Cases, at pp. 451-452]. Walker wrote: “In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.” [See Romer, at 633; Moreno, at 534; Palmore v Sidoti, at 433 (“The Constitution cannot control private biases but neither can it tolerate them.”)].

The arguments surrounding Proposition 8 raised a question similar to that addressed in Lawrence, when the Court addressed a sodomy case and asked whether a majority of citizens could use the power of the state to enforce “profound and deep convictions accepted as ethical and moral principles” through the criminal code. (The Court held it could not). The question here is whether California voters can enforce those same principles through regulation of marriage licenses. The court made it clear they cannot. As Judge Walker wrote: “California’s obligation is to treat its citizens equally, not to mandate its own moral code…. Moral disapproval, without any other asserted state interest, has never been a rational basis for legislation. And moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.” [Romer, at 634]. Because the court was convinced by plaintiffs’ arguments, that Proposition 8 disadvantages gays and lesbians without any rational justification, it concluded that Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment and hence in unconstitutional.

Furthermore, as Judge Walker wrote: “Proponents have failed to identify any rational basis Proposition 8 could conceivably advance. Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Proposition 8. The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. Proposition 8 violates the Equal Protection Clause because it does not treat them equally.”

In dismissing proponents’ arguments in support of Proposition 8, Walker continued to emphasize: “Tradition alone cannot support legislation.” [He cited Romer, at 635 and Lawrence, at 579]. He then continued: “Proponents’ purported rationales are nothing more than post-hoc justifications. While the Equal Protection Clause does not prohibit post-hoc rationales, they must connect to the classification drawn. Here, the purported state interests fit so poorly with Proposition 8 that they are irrational, as explained above. What is left is evidence that Proposition 8 enacts a moral view that there is something ‘wrong’ with same-sex couples. The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. The campaign relied heavily on negative stereotypes about gays and lesbians and focused on protecting children from inchoate threats vaguely associated with gays and lesbians. At trial, proponents’ counsel attempted through cross-examination to show that the campaign wanted to protect children from learning about same-sex marriage in school. The evidence shows that Proposition 8 played on a fear that exposure to homosexuality would turn children into homosexuals and that parents should dread having children who are not heterosexual.” (He cited the video,” It’s Already Happened,” which addresses a mother’s expression of horror upon realizing her daughter now knows she can marry a princess). Of course, these are legitimate concerns for heterosexual parents who know how hard it is to raise children, but the court chose to portray these concerns as something sinister.

When the decision was announced, Pugo commented: “A year ago, state courts upheld the outcome of the statewide vote. This afternoon, a federal court reached the opposite conclusion. Walker’s invalidation of the votes of over 7 million Californians violates binding legal precedent and short-circuits the democratic process. It is disturbing that the trial court, in order to strike down Prop. 8, has literally accused the majority of California voters of having ill and discriminatory intent when casting their votes for Prop. 8.”

Jim Campbell, a lawyer on the defense team, criticized the decision: “In America, we should uphold and respect the right of people to make policy changes through the democratic process, especially changes that do nothing more than uphold the definition of marriage that has existed since the founding of this country and beyond.” Attorney Pugo said: “Proposition 8 had nothing to do with discrimination, but rather with the will of California voters who simply wished to preserve the historic definition of marriage… The other side’s attack upon their good will and motives is lamentable and preposterous.”

On Aug. 11, Cal Thomas wrote: “A nation that does not see in law a right to life for its unborn children and a court that allows more than 50 million of them to be killed claiming a nonexistent “penumbra” in the Constitution is not about to acquire a moral — much less a constitutional — backbone when it comes to same-sex “marriage. A nation that loses its moral sense is a nation without any sense at all. The decision by a single, openly gay federal judge to strike down the will of 7 million Californians, tradition dating back millennia (not to mention biblical commands, which the judge decided, in his capacity as a false god, to also invalidate) is judicial vigilantism equal to Roe vs. Wade.”

Mr. Thomas addressed the fact that Judge Vaughn Walker is an openly-gay judge who is in charge of sitting in judgment on cases respecting morality and decent values for our society. When Walker was appointed by President Reagan in 1987, there was no indication of his alternative lifestyle. If news of his sexuality had been known, he probably would not have been appointed, but as Thomas explains: “If it had not been Walker, it would have been another judge, because America’s problem is not entirely at the top; rather it is mostly at the bottom. What we tolerate, we get more of, and we have been tolerating a lot since the Age of Aquarius generation began the systematic destruction of what past generations believed they had sacrificed, fought and died to protect. None of this should surprise anyone who takes the time to read and understand what happens to people and nations that disregard God.”

How does the federal government fit in with all this? What is the government’s position, you may be wondering… On September 21, 1996, Congress passed, and President Clinton signed, the Defense of Marriage Act (DOMA), which defines marriage for purposes of federal law as the legal union between one man and one woman as husband and wife. The main provisions of DOMA, codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C, are as follows:

Section 2. Powers reserved to the states: “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”

Section 3. Definition of ‘marriage’ and ‘spouse’: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

The Defense of Marriage Act passed the House of Representatives by a vote of 342 to 67, and the Senate by a vote of 85 to 14. While DOMA reflected federal law, states were left to decide for themselves how to define marriage and how to recognize homosexual rights with respect to relationships. And same-sex groups began to protest for their equal rights. On May 17, 2004, the Massachusetts Supreme Court, in Goodridge v. Department of Public Health, held that it was unconstitutional under the Massachusetts state constitution to allow only heterosexual couples to marry. [“The right to marry is not a privilege conferred by the State, but a fundamental right that is protected against unwarranted State interference. The State does not have a rational basis to deny same-sex couples that right. (The state constitution) affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens.”] Thus, Massachusetts recognized the right of homosexual couples to marry. Also in 2004, Mayor Newsom began issuing marriage licenses in San Francisco to gays and lesbians, in clear violation to California state law.

On February 24, 2004, President Bush delivered a speech in which he publicly advocate for and express his support for a constitutional amendment affirming a marriage as between one man and one woman. As he stated: “The union of a man and a woman is the most enduring human institution, honored and encouraged in all cultures and by every religious faith. Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society.” He said he decided to endorse an amendment because of the decision in Massachusetts and the mayhem in San Francisco. “After more than two centuries of American jurisprudence and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization. Their actions have created confusion on an issue that requires clarity. Decisive and democratic action is needed, because attempts to redefine marriage in a single state or city could have serious consequences throughout the country.” [See the transcript of Bush’s speech following the reference section].

As Bush explained: “The Constitution says that full faith and credit shall be given in each state to the public acts and records and judicial proceedings of every other state. Those who want to change the meaning of marriage will claim that this provision requires all states and cities to recognize same-sex marriages performed anywhere in America. Congress attempted to address this problem in the Defense of Marriage Act, by declaring that no state must accept another state’s definition of marriage. My administration will vigorously defend this act of Congress. Yet there is no assurance that the Defense of Marriage Act will not, itself, be struck down by activist courts….. For all of these reasons, the Defense of Marriage requires a Constitutional amendment.” [Amending the Constitution is difficult, requiring a two-thirds majority each in the House and Senate and ratification by three-fourths, or 38, of the 50 states].

Unfortunately, President Bush didn’t receive the support in Congress that he hoped, with many members preferring to allow states to handle the matter as they deem appropriate. In September 2009, three Democratic members of Congress introduced legislation, referred to as the Respect for Marriage Act, to repeal DOMA. The bill had 91 original co-sponsors in the House of Representatives, but gay Congressman Barney Frank and John Berry, head of the Office of Personnel Management, refused to support it. Their reason was that there was not enough support in Congress (“the backbone is not there”) but they noted that litigation might be the best way to overturn DOMA. But as it stands now, DOMA defines marriage for purposes of federal law and is still the law of the land. And 38 states have provisions protecting the traditional institution of marriage.

Only the states of Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and the District of Columbia allow marriages between persons of the same sex. Now California wishes to join that group. Is the federal decision out of California an example of the current trend to redefine marriage to include gays and lesbians? For the most part, the answer is Yes. Gay and lesbian couples are suing for Equal Protection and Due Process rights. They are suing for state, and hopefully soon, national recognition that they have a fundamental right to be “married.” They are making similar arguments about discrimination and impact. State law on the topic varies across the country, as would be expected in a nation based on federalism and strong states’ rights. The state of Massachusetts believes that the right to marry is a fundamental right for everyone. [Goodridge]. The state of New Jersey believes that it is not a fundamental right. [Lewis v. Harris]. If the Supreme Court in fact decides to hear Perry…. and if it succeeds, it could mean that gay marriage would be permitted not only in California but in every state. How could this be possible on a case stemming from state law? If the Supreme Court makes a fundamental declaration, such as how it will classify groups of people, this becomes legal precedent. So, if the Supreme Court were to recognize homosexuals as indistinguishable from heterosexuals for the purpose of marriage law, it would be hard, if not impossible, for any state to uphold its individual laws on marriage which classify people on the basis of sexual orientation. Such a determination would become binding on the states.

As momentum for their cause grows, gays and lesbians hope the Supreme Court will hear their case and find in their favor. And Perry just might be that case. Attorney Ted Olson is hopeful that the high court will take it up. (Personally, he enjoys a high success rate in arguing cases in front of the Court, plus he enjoys a tight relationship with several of the Justices, who are very close friends. In fact, several attended his wedding a few years ago). He hopes the case will be a “teaching experience.” He hopes the Supreme Court will end the discrimination that gays and lesbians face on account of their sexual orientation. Unfortunately, good intentions alone isn’t a sufficient motive to undue sound scientific rationale and valued traditional institutions. At least it shouldn’t be.

Lewis v. Harris (N.J. 2006) is a New Jersey Supreme Court case which I remember clearly, being that Jersey is my home state and the state where I got my legal education. I bring this case up because I think it was properly decided. I think it was a thoughtful decision which respected the interests of all interested parties – homosexuals and persons wishing to protect the traditional institution of marriage.

Plaintiffs were seven same-sex couples who have been in committed relationships for many years and who wanted to get married in order to enjoy the legal, financial, and social benefits that marriage affords. They challenged the constitutionality of state laws that denied marriage licenses to same-sex couples as violating their fundamental right to marriage and alternatively, as violating their rights to equal “protections” of the law. Plaintiffs claimed that the liberty interest denied to them was “the right of every adult to choose whom to marry without intervention of government.” The court reasoned and concluded that the right to marriage is NOT a fundamental right as afforded by the NJ state constitution (very similar to US Constitution), but that under its equal protection clause, same-sex couples are indeed entitled to the same “protections.” The court refused to acknowledge a right to “marriage” while the equivalent avenue of civil unions is available to confer the same rights and legal responsibilities.

The court explained: “Within the concept of liberty protected by Article I, Paragraph 1 of the New Jersey Constitution (which mirrors the rights in the US Constitution) are core rights of such overriding value that we consider them to be fundamental. Determining whether a particular claimed right is fundamental is a task that requires both caution and foresight. When engaging in a substantive due process analysis under the Fourteenth Amendment, the United States Supreme Court has instructed that it must ‘exercise the utmost care’ before finding new rights, which place important social issues beyond public debate, ‘lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of the Court.’ (Washington v.Glucksberg). In searching for the meaning of “liberty” under Article I, Paragraph 1, we must resist the temptation of seeing our own strongly-felt opinions and beliefs. Under the guise of newly found rights, we must be careful not to impose our personal value system on eight-and-one-half million people, thus bypassing the democratic process as the primary means of effecting social change in this State. That being said, this Court will never abandon its responsibility to protect the fundamental rights of all of our citizens, even the most alienated and disfavored, no matter how strong the winds of popular opinion may blow.

Despite the rich diversity of this State, the tolerance and goodness of its people, and the many recent advances made by gays and lesbians toward achieving social acceptance and equality under the law, we cannot find that a right to same-sex marriage is so deeply rooted in the traditions, history, and conscience of the people of this State that it ranks as a fundamental right. When looking for the source of our rights under the New Jersey Constitution, we need not look beyond our borders. Nevertheless, we do take note that no jurisdiction, not even Massachusetts, has declared that there is a fundamental right to same-sex marriage under the federal or its own constitution.”

Nevertheless, the Court had to examine whether those laws that deny to committed same-sex couples both the right to and the rights of marriage afforded to heterosexual couples offend the equal protection principles of the state constitution. The NJ state constitution states that every person possesses the “unalienable rights” to enjoy life, liberty, and property, and to pursue happiness. Although the document nowhere expressly states that every person shall be entitled to the equal protection of the laws, the courts have construed Article I to embrace that fundamental principle. The first paragraph of Article I “protects against injustice and against the unequal treatment of those who should be treated alike.” So when a statute is challenged on the ground that it does not apply evenhandedly to similarly situated people, New Jersey’s equal protection jurisprudence requires that the legislation, in distinguishing between two classes of people, bear a substantial relationship to a legitimate governmental purpose. The court concluded that it could find no legitimate public need for an unequal legal scheme of benefits and privileges that disadvantages committed same-sex couples. Hence it held that there was a clear equal protection violation in that committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by married opposite-sex couples.

Having unanimously come to the agreement that current state law regarding marriage as between a man and a woman is unconstitutional with respect to the equal protection of same sex couples, the court was divided as to what remedy was required. It noted that the equal protection requirement leaves the Legislature with two options: the Legislature could simply amend the marriage statutes to include same-sex couples, or it could create a separate statutory structure, such as a civil union, as Connecticut and Vermont have done.

Plaintiffs did not want a separate statutory scheme. They wanted full rights to marriage. They argued that they could not be “made whole” by a statutory scheme even if it granted them equal social and financial benefits. They argued that the only thing that would “make them whole” would be if they are allowed to call their committed relationships by the same name as heterosexual couples call their relationships – by the name of “marriage.” They maintained that a parallel legal structure, called by a name other than marriage, which provides the social and financial benefits they have sought, would be a separate-but-equal classification that offends the state constitution (equal protection). From plaintiffs’ standpoint, the title of marriage is an intangible right, without which they are consigned to second-class citizenship. Plaintiffs weren’t just seeking simple legally equal standing but were also seeking social acceptance, which in their view is the last step toward true equality.

Three justices (the minority) argued that the only constitutional remedy is the amendment of state marriage law to include same-sex couples. [Note that several of the NJ Supreme Court judges were appointed by the openly-gay Governor Jim McGreevey… aka, Governor Mc Shcheevy or Governor McSleezy). In the end, the New Jersey legislature opted not to legalize gay marriage, but instead passed a bill legalizing civil unions. They decided to create an appropriate statutory scheme. A year later, a commission was setup by the Legislature to examine the new Civil Union law to see how it was working, and to look at the possibility of same-sex marriage. The report came back unanimously recommending that the Legislature legalize gay marriage. New Jersey’s Governor Jon Corzine has said he would sign a same-sex marriage bill, but wanted to wait until 2009 after the presidential election. “The Freedom of Religion and Equality in Civil Marriage” Act was passed by the NJ Senate Judiciary committee in a close 7-6 vote. But the bill was rejected by the full Senate the following day. Governor Chris Christie has said that he will not sign a marriage equality bill while he is governor. So at this time, New Jersey recognizes civil unions as the appropriate scheme to recognize gay unions and to provide the legal rights and duties that that they want.

So, is the right to marry one of the same sex a fundamental right here in this country, under our US Constitution? I think that answer will only come out if and when the Supreme Court agrees to hear this case. I think the case, for those who wish to preserve marriage as a traditional union between a man and a woman, to honor the sacred role and fundamental purpose it serves our society, will hang on whether the need to define marriage as between a man and a woman serves a compelling and legitimate state (government) issue. If this can be shown, then courts will be able to legally explain why even a fundamental right might need to be denied. Of course, I would have thought that the state might want to recognize that special union between a man and a woman because it honors their intention to start a family and will overwhelmingly result in children. And propagation of society is certainly a compelling state interest. But homosexual judges obviously don’t see this as a compelling enough state interest. My bad. My charge to people who are passionate on this subject is to get involved and make your voices known as to the reasons you believe traditional marriage needs to be protected. I believe ProtectMarriage.com brought up some excellent arguments in their case against Perry to defend Proposition 8, but they clearly did not go far enough. I would have brought up some additional arguments, such as some scientific rationale to defend marriage and to explain why children and adolescents will be harmed by the social change which will result when traditional gender and family roles become blurred, and some common sense parenting concerns.

But first I might challenge homosexuals to define precisely what compelling state interest is served by allowing them to “marry.” For there certainly can be no greater compelling interest than encouraging propagation among married couples. Homosexual couples will, and already have (see Perry) challenged the traditional notion that only heterosexual couples can procreate. With artificial insemination and guys like David Crosby out there, there is nothing that prevents lesbians from becoming artificially inseminated. (Getting pregnant the “new fashion” way). Furthermore, many homosexual couples can adopt. But this doesn’t take away from the fact that homosexual couples cannot procreate together. It’s nature’s way of saying “it ain’t right.” And it doesn’t take away from the fact that homes with both a father and a mother offer children what they need for proper development. There is plenty of evidence to show that children need both parents, both sexes, in the home. Children need to be nurtured by parents of both sexes if they are to learn to function in a society made up of both sexes. Is it wise to have a social policy that encourages family arrangements that deny children such essentials? Gays are not necessarily bad parents, nor will they necessarily make their children gay, but they cannot provide a set of parents that includes both a male and a female.

Homosexuals will argue (as they did in Perry) that denying them the rights to enter into the covenant of marriage, like heterosexuals can, is a violation of their civil rights. In Perry they argued that just as it was wrong to prohibit blacks and whites from inter-marrying, it is also wrong to prohibit homosexuals access to the rights and benefits of “marriage.” There is no doubt that for many years, state laws prevented interracial marriage and the Supreme Court was correct in determining that these laws were unconstitutional and in violation of Equal Protection laws. Homosexuals claim that they are being discriminated against in their civil rights for “being what nature made them.” They say they can’t help being “what they are” (homosexual) any more than a black person can help being black. What they are claiming is that sodomy is a natural act that should be protected by the same laws and in the same manner that protect persons distinguished by race.

But this argument is inherently flawed. However, skin color and sexual behavior are entirely different. The first is an inborn characteristic while the second is behaviorally based (not genetic) and has everything to do withindividual character, moral choices, and society’s basic rules of conduct. If civil rights laws can be used to justify and sanction the behaviors of homosexuals, where does it stop? Next child molesters will demand rights to work in daycare centers and work in the public school system. But we really don’t even have to go here. The Equal Protection clause of the Constitution historically has been viewed to respect those regardless of race, color, religion, or national origin. Those who designed the 14th Amendment certainly didn’t have in mind the protection of those who with different sexual preferences or orientation. After all, national opinion has always shown repugnance to preferences such polygamy and incest, which, like homosexuality, are based on a deviant sexual scheme.
[Note: Historically, the Supreme Court has attached “suspect class” status (status which triggers the greatest judicial scrutiny – strict scrutiny) to racial minorities and religious groups. It has not been willing to extend suspect-class status to sexual orientation, nor even recognize it for intermediate scrutiny. The lowest scrutiny is all that is required. Strict Scrutiny analysis = the enactment at issue which classifies groups of persons, say by race, must be able to stand the highest scrutiny for constitutionality; it must be “narrowly-tailored to further a compelling state interest.” The lowest analysis, Rational Basis scrutiny, requires only that the enactment be “rationally related to a legitimate state interest”].

Homosexuals will make the argument (again, as they did in Perry) that same-sex marriages serve a state interest because they enable gays and lesbians to live in committed relationships. Well, there are perfectly able to do that today. There is nothing stopping them other than their unwillingness to do so because it officially is not termed a “marriage.” They will also argue (again, as they did in Perry) that the link between marriage and procreation is not as strong as it used to be. While that might be true, it is irrelevant since the overwhelming number of married couples plan on conceiving and having a family. Adam Kolasinsky wrote in 2004: “Until recently, the primary purpose of marriage, in every society around the world, has been procreation. In the 20th century, Western societies have downplayed the procreative aspect of marriage, much to our detriment. As a result, the happiness of the parties to the marriage, rather than the good of the children or the social order, has become its primary end, with disastrous consequences. When married persons care more about themselves than their responsibilities to their children and society, they become more willing to abandon these responsibilities, leading to broken homes, a plummeting birthrate, and countless other social pathologies that have become rampant over the last 40 years. Homosexual marriage is not the cause for any of these pathologies, but it will exacerbate them, as the granting of marital benefits to a category of sexual relationships that are necessarily sterile can only widen the separation between marriage and procreation.”

Is homosexuality a “choice” or is it embedded in our genetics? I would like to pull a “Judge Walker” right now and state that the argument for a genetic basis is flimsy and without much merit. Homosexuality is much too common for it to be considered a genetic aberration (and by “aberrant” I mean “deviating from that which is normal or desirable”). There is no rhyme or reason for who is gay or who is “turning gay.” That flies in the face of genetics which shows that aberrations just don’t spontaneously arise so frequently and indiscriminately. Homosexuals say they “know they aren’t meant to be straight” and they claim that homosexuality is just as “normal” as heterosexuality and all one has to do is look at the animal kingdom. Here are my thoughts on that:

1). Those animals who try to come together sexually will not reproduce, so their individual traits of homosexuality will be removed from the immediate gene pool. If a farmer who lived in England was able to genetically-modified his male cow (bull) so that it would be completely resistant to Mad Cow disease, he would indeed have an animal with superior survivability abilities. He would count on that bull to propagate that desirable genetic trait through sexual reproduction. If, however, that bull had no interest in female cows but rather enjoyed being a Brokeback Cow, then its “superior” genetics have reached a dead end. Also consider if this bull was the last male of its species. What if the future of his kind depended on his coupling with female cows and what if he just wasn’t interested in them? Brokeback Cow represents, as I like to say, an evolutionary cul-de-sac. Nature might have homosexual members but there are severe consequences.

2). The fact that homosexuality is a “common” aberration does not stop it from being wrong. For example, a rise in the number of child molestations in a city does not stop it from being an aberrant crime. No judicial body would accept child molestation as acceptable conduct because it has become “common” and more widespread in society. I would also use the example of lying. But that wouldn’t be a good one. Politicians have been doing it so commonly and so insidiously that they don’t consider anything wrong with it anymore.

3). The fact that homosexuality is a “common” aberration and becoming more popular (as opposed to the animal kingdom where it is still very uncommon) suggests that it is associated more with “recruitment” and experimentation rather than genetics.

4). We should not necessarily look to the animal kingdom for what is “normal” and “aberrant.” First of all, God created us specifically in his image, (as man and woman, to have dominion over all the beasts and animals. Genesis 1:28. Second of all, animals engage in “common” things like infanticide, cannibalism, and abandonment. Just because animals do something doesn’t make it right or wrong.

Homosexuality is certainly more behavioral than genetic. If it were genetic, there wouldn’t be all the “experimentation” and “fluidity” (going from one choice to another) that is associated with it. Also, the entire genetic code has been sequenced. Not only have scientists not found the “gay gene,” but they still haven’t shown a plausible genetic explanation for the preference. Maybe there is a higher level of female hormone in the gay man? Maybe there are certain differences in brain matter? There are all kinds of theories and suggestions. Two things are for sure, (1) Homosexuality is condemned in the Bible, and (2) if there indeed is gene for homosexuality, the theory which guides how species develop and adapt – Darwin’s Theory – will explain how it needs to be weeded out of the gene pool. First, it is not news to anyone that the Bible, even in its earliest books, refers to homosexuality as an “abomination.” (Genesis 19: 1-13). Leviticus 18:22 says: “Do not lie with a man as one lies with a women; that is detestable.” Leviticus 20:13 says: “If a man lies with a man as one lies with a woman, both of them have done what is detestable.” The word for “abomination” is used five times in Leviticus 18 and is a strong term of disapproval, implying that something is abhorrent to God. The same Creator that gave us our fundamental rights also set limits on them.
In Genesis 1:28 we learn that God created Adam and Eve “in his own image” – as male and female. Not as man and man. Not as woman and woman. He created them to be capable of procreation, and then he blessed them and commanded them to “Be fruitful and multiply.” Again, the God who taught us to love one another and to love thyself, and who gave us “right reason” through our inherent goodness and our ability to use our mind to reason which is the very basis of Judeo-Christian laws and our national laws as well, also teaches us that man is meant to lie down with a woman.

As we all are aware, the most important function of every species is to preserve its existence. In other words, it needs to be able to procreate and preserve itself. Under Darwin’s process of natural selection, all living things are continually adapting, usually genetically, to their natural environment in order to have a better chance of surviving. The weakest link (the most poorly adapted) will die off while the strongest, most robust, and versatile will survive and go on to mate and propagate the species. With each such “selection event,” the genetic make-up of the species becomes improved and adapted for survivability. In other words, those members of the species which are best able to survive and reproduce under certain circumstances will be the ones to pass on their genes and traits most successfully. The evolution of species is therefore a series of events dominated by strong genes and demanding environments (“selection pressure”). Darwin’s theory of “survival of the fittest” and “survival of the species” therefore explains how genes which weaken the species will be quickly rooted out. And the gene which prevents the species from procreating would be exactly the gene that is weeded out first. Again, homosexuality is an evolutionary cul-de-sac.

Marriage is the basic, most important and fundamental institution of our ordered civil society. Its primary purpose is for procreation and proper child-rearing, for stability and for the type of education and modeling that enables young men and women to become independent from their parents to become decent, respective, moral, productive, well-adjusted members of society. States and government should be trying to protect its integrity and not destroy and undermine it. Everything right in society stems from a solid and productive marriage and family union. Marriages between a man and a woman are on a completely different scale than unions involving a man and a man or a woman and a woman. There is nothing, and I mean, nothing, that can compare to a relationship that involves creating another human being, realizing that it is your own flesh and blood and endowed with the traits and characteristics that were you at an early age. Creating and bringing a child into the world reminds each couple that there is a God and that just as there is no words that can describe or quantify the love you have for your child, there is no end to the love that God has for his people. Children are a gift from God, blessed upon a couple that has entered into a covenant of marriage and accepting the responsibilities that God has set out. There is nothing that can compare to the marital bond as it grows with the growing fetus and then with the growing child. There is something special and natural when two people can come together, in love, and create another human being, representing a perfect union of both Mom and Dad. Gays and lesbians can’t truly know all the things that make up a true family unit… They can’t know the sorrow and frustration of miscarriages and the difficulty of conception. They can’t know the dark side of pregnancy.. post-partum depression, permanent body changes, scarring. These are things that marriages and families are built on. They are built on a union that recognizes that they usually want and plan to build something more important and more precious than just a coupling. Marriages are meant for this kind of commitment and for this traditional union. To say that marriages can be allowed for just anyone simply serves to dilute that sacred distinction that marriage holds in the community and in the eyes of God.

Plaintiffs suggest that domestic partnerships cannot substitute for marriage because domestic partnerships do not have the same social and historical meaning as marriage and that much of the value of marriage comes from its social meaning. The “social and historical meaning” associated with marriage comes from the traditional adherence and respect given to this institution, as well as to the religious implications associated with it. Marriages are looked upon as “sacred.” What I am trying to say is that the status associated with this relationship of “marriage” has been EARNED. It has been earned by historical observance of the traditional roles that marriage embraces. These roles have been ordained as being those necessary for a moral and ordered civil society. Gays and lesbians are seeking to benefit from the status of marriage without having to observe the rules that have supported this “sacred union” in the first place. It would be like gays and lesbians demanding to have the right to join a church, even though each church might wish to respect certain virtues and rules for its congregation and membership. The worth of a title is only as valuable as the collection of people that can claim that title. The significance of religion on the marital union must not be diminished. It must not be diluted. To do so will be to dilute the sacredness for all.

The Heritage Foundation wrote a good piece on marriage back in 2004 and I think one section in particular is worth sharing here:
“For thousands of years, on the basis of experience, tradition, and legal precedent, every society and every major religious faith have upheld marriage as a unique relationship by which a man and a woman are joined together for the primary purpose of forming and maintaining a family. This overwhelming consensus results from the fact that the union of man and woman is apparent and manifest in the most basic and evident truths of human nature.

Marriage is the formal recognition of this relationship by society and its laws. While individual marriages are recognized by government, the institution of marriage pre-exists and is antecedent to the institution of government, which in turn presupposes and depends on the institution of marriage. Society’s interest in uniquely elevating the status of marriage among human relationships is that marriage is the necessary foundation of the family, and thus necessary for societal existence and well-being.

The basic building block of society is the family, which is the primary institution through which children are raised, nurtured, and educated, and develop into adults. Marriage is the cornerstone of the family: It produces children, provides them with mothers and fathers, and is the framework through which relationships among mothers, fathers, and children are established and maintained. Only in the context of family built on the foundation of marriage can the sometimes competing needs and interests of men, women, and children be harmonized.
Because of its characteristic relationship with the family, marriage is uniquely beneficial to society. Based on existing studies comparing two-parent and single-parent households, social science overwhelmingly demonstrates that children do far better when they are raised by two married parents in a stable family relationship and that children raised in other household structures are subject to significantly increased risk of harm.

Evidence further suggests that one reason children do better in a married household is not just the stability of having two parents, but the fact that a male and a female parent each bring distinctive strengths, perspectives, and characteristics to the family unit that benefit both children and the parents. Although we have little information concerning children raised in households with same-sex parents, what we do know is that marriage between a man and a woman provides unique social, economic, and health benefits for children, adults, and society in general.

Moreover, because of the shared obligations and generational relationships that accrue with marriage, the institution brings significant stability, continuity, and meaning to human relationships and plays an important role in transferring basic cultural knowledge and civilization to future generations.

In the end, despite all the changes that law and cultural trends have wrought concerning marriage–despite the laws concerning prenuptial agreements, divorce, tax, and property that treat marriage as a contract–it has never before been, nor is it now completely, the case that marriage is a mere contract. Society has changed the form, but never the substance, of marriage; and it is the substance of marriage–its very nature, definition, and purpose–that creates and justifies its unique position as a social institution and continues to give lawmakers strong and reasonable arguments for upholding traditional marriage and protecting it in law.”

Right now, states are allowing marriage for homosexuals. What will stop the polygamist from demanding his equal marital rights? What will stop Uncle Joe from marrying his lovely niece Sarah? The same arguments that plaintiffs used in Perry to tear down the sanctity of traditional marriage equally apply to these other candidates. If marriage is no longer “traditional” enough (their argument was that marriage has transformed so effectively that traditional gender and marital roles no longer exist) to prevent homosexuals from tying the knot, then it isn’t “traditional” enough to prevent polygamists and members of the in-breeding society to tie the knot as well. Homosexuals have started this country on a slippery slope that will end with complete moral decay and destruction of all traditional notions for a moral society. Marriage needs to be reserved for those couples, a man and a woman, who follow the traditional plan of coming together to eventually start a family. It is a blessed union designed to produce fruit, to perpetuate family trees. It is the most honorable and noble of life’s deeds.

Allowing gay marriage will erode the sanctity that attaches to the sacred union. It will make a mockery of the sacred covenant of marriage, which was intended to foster procreation and tight family units. It risks enshrining into law the notion that sexual love is the sole criterion for marriage. If the state must recognize a marriage between two men simply because they love one another, then it must also do so for polygamists and the like. How can the state prevent this scenario? By declaring that the purpose of marriage is for procreation and protecting traditional marriage. That’s how. If sexual love becomes the perceived purpose of marriage, it will lead to marital chaos. Legalizing homosexual marriage would allow a tiny minority of people to change long-held moral codes and the social commitments that sustain it.

I think an important issue that the court needs to hear regarding social change, especially on the magnitude that we are talking about (redefining traditional gender and social roles), is how such change will impact young children. Openly-gay Judge Walker was not able to appreciate the difference between a man and a woman raising a child or a same-sex couple. He was not able to appreciate the inherent greater value that comes from a heterosexual union providing proper role models. He discredited the arguments and evidence presented by proponents, including the information presented by notable social psychologist David Blankenhorn, which showed that children fare better in stable traditional homes with a mother and a father, and not with two Daddies or two Mommies. In fact, Walker wrote: “Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted.” Aside from the psychological aspect of being raised in a homosexual home where traditional gender and role models are blurred, there is the simple inability of children and adolescents to process change and consequence properly because of their limited brain development.

Research conducted in 2004 at Cornell University with the National Institute of Mental Health (NIMH), using MRI analysis on the adolescent brain, supports what some parents have long suspected – that the teenager’s brain is different than the adult brain. The research showed that the teen brain is not a finished product, but rather a work in progress. Up until fairly recently, scientists believed that the brain was fully mature (that is, learning and processing pathways were laid down) by age 10-12. However, this recent study at Cornell shows that the greatest changes to the parts of the brain that are responsible for functions such as self-control, judgment, emotions, and organization occur between puberty and adulthood. This, they believe, may help to explain certain teenage behavior that adults can find frustrating, such as poor decision-making, recklessness, and emotional outbursts.

During the teen years, it turns out, the brain undergoes a wave of development that scientists were not aware of before. The brain undergoes a wave of overproduction of gray matter in the mid to later teen years (just as it did in the first 18 months of life) and then uses this opportunity to form new or re-enforce old learning pathways (“use it or lose it” kind of thing). It is explained that this pruning process makes the brain more efficient. Add onto this finding the fact that not all parts of the adolescent brain mature at the same time and then interact with one another as they do upon full maturation (in the 20s). Because not all parts of the adolescent brain mature at the same time, the adolescent may be at a disadvantage in certain situations, especially in areas of emotion and processing feelings and appreciating consequences. For example, the limbic areas of the brain, which are thought to regulate emotions and are associated with an adolescent’s lowered sensitivity to risk and propensity for novelty and thrill seeking, mature earlier than the frontal lobes, which are thought to be responsible for self-regulation, judgment, reasoning, problem-solving, and impulse control. This difference in maturational timing across the brain can result in impulsive decisions or actions, a disregard for consequences, and emotional reactions that can put teenagers at serious risk in ways that may surprise even the adolescents themselves. There is, however, tremendous individual variability among adolescents, the pathways they follow, and the outcomes they experience. For example, the emotional and physical energy that is characteristic of adolescence can be channeled into sports, academics, music, art, and various causes as well as in negative directions that produce adverse outcomes, including alcohol use. Experiences that promote self-reliance, independence, and self-regulation usually involve some risk.

The point is that adolescents, let alone elementary school children, lack the mental processing ability to appreciate deviation from social norms or to process the consequences of conduct that might harm or confuse them in their more mature years. Confusion is an adolescent’s worse enemy. Any child psychologist will stress that young children and adolescents need good role models in their lives. They will imprint and adopt what is around them. Don’t let Judge Walker convince you otherwise. These facts and findings add new dimensions to the issues surrounding and facing young people. These should serve to concern and challenge our policy makers to do better on their behalf, and not to add to the conflicting and confusing messages they already receive in the public schools and in our morally decaying society.

My final concern is over the educational changes that will need to take place to elevate homosexuality to a protected and respected lifestyle choice. We all know that the public school system will want to “educate” and “indoctrinate” everyone on this subject. They will want to take class time away from real learning to devote to additional lessons on “diversity.” Who knows, maybe we will even have a “Gay Pride” Month and students can draw rainbows all over the place. I absolutely don’t want the school system to teach my children about homosexuality. I don’t trust the school system to teach this topic appropriately. Why is that? Because that same school system is not allowed to acknowledge religion and quite possibly, not even allowed to teach morality. No public institution should even approach the subject of homosexuality until each child has a strong religious foundation, a strong sense of family and community, and a strong foundation and education in science so they can evaluate that subject in the context of religion, morality, and science. And that rarely happens until later in the high school curriculum, if not even later than that.

I would condemn any school system which tries to teach homosexuality as a healthy alternative to a heterosexual lifestyle because that would put the lesson at odds with my religious principles. If the school attempts to preempt my children from learning what the Bible teaches them, then I would have a problem under the First Amendment and my rights to exercise my religion and to raise my children as I deem appropriate. We have a serious disconnect in this country between people who want to live their lives in an unstructured “anything goes” way and those who see the benefit from structure and discipline. I think we’ve already seen what history has to say about the former. Many times, as a matter of fact. I just think it is heinous and irresponsible for the supposed highest thinkers in our country, our judges, to give support and credence to their cause. They are taking us from the back roads right to the highway to hell. Personally, I’m just fed up with society and with judicial activism which continually want to root out tradition in favor of progressivism. How much harder do they want to make it on parents to work, contribute to society, hold their families together and raise their children properly? The overwhelming majority of the country would love to be able to raise their children in a society that respects decent wholesome values. We don’t appreciate the constant struggles to navigate our children through the decay they face every day in an “anything goes” environment. As I’ve discussed earlier, their brains aren’t even equipped to process the decay properly. How much psychological confusion do children need to bear?

As a mother of four, I am already horrified at the attempts by schools to teach homosexuality as a perfectly legitimate lifestyle choice and a perfectly acceptable choice of sexual affiliation. I have invested many years teaching my kids the proper way to live and the proper values to guide their actions, their decisions, and their lives. And the schools come along and have carte blanche to use whatever teaching programs it wants to undermine my teaching and my parenting efforts. I want my children to grow up, get married, and enjoy the supreme satisfaction that comes from conceiving a child, carrying it until birth, and raising it. I want them to enjoy the miracle of life, the opportunity to reproduce part of themselves, and the opportunity to conceive a child with someone they love. It will ultimately be their choice, of course, but I don’t want my children being confused into a decision, into experimentation, into a potential life style that robs them of this opportunity as well as one that puts them at risk for some horrible diseases. Again, this goes back to my point that children need a solid and firm foundation in values (that THEY and THEIR PARENTS embrace, and NOT what the school or what society embraces) before they should be exposed to (or rather, inundated with) homosexuality. This is America, the country that was founded on morality and on a deep respect for the laws of our Creator. As such, laws are supposed to be designed to protect the good and decent members of society. John Adams said: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” If we’ve officially abandoned our Constitution, can someone please let me know.

There absolutely should be a different scheme for heterosexuals and homosexuals as to how to classify their relationships because their coupling is simply and most fundamentally different. There should be a distinction of relationship terms (“marriage” versus “civil union” and domestic partnerships”) because the nature of the relationships themselves are different. To conclude any differently is illogical and ingenuous. It is counterintuitive.

Proposition 8 is about the majority group making its voice known on a very important issue. That is not to say that the majority ever had the right to oppress a minority group, but that is not what has happened. There has been no oppression and in fact, there has been tolerance. In most states there has been recognition of homosexual unions and recognition of their rights. Statutory pathways have been created to give them status and equal rights. And some states have given them more. There is no legal requirement to give homosexuals parity with heterosexuals when it comes to relationships because there is simply no such biological parity. Biology, a politically void science, speaks clearly on this matter. Homosexuals aren’t being discriminated. That would imply that they are “entitled” to a marriage. They are not entitled to a marriage when it is based on a fundamental biological principle that they offend.

Proposition 8 was a desperate measure by a desperate people. They took a stand to protect the traditional definition of marriage, for their society’s sake. I would propose another desperate measure.. Let’s rally for a Constitutional amendment to fix our broken judicial system. No more legislating from the bench. Let us require that judges, when they are alone in their chambers, hear voices from men like Thomas Jefferson, James Madison, and Justice John Marshall… and not voices from Karl Marx, Saul Alinsky, and Liberace.

I want to end by making one word of caution. If gays and lesbians get the right to “marry,” we may see our government attempt to throw out all religious significance and religious interpretation with regards to the union. Why do I say this? Already, many gay activists (who see society moving in the direction of equal rights to marriage) are complaining that the religious custom, imposes a religious interpretation and condemnation on their relationships. They argue that marriages recognized by the State should not be forced to meet religious standards because that burdens their civil rights. They argue that religion has no place in government anyway.

I’m not writing this in any way to discriminate against homosexuals as persons with dignity and with rights, but Spock from Star Trek has taught me a very powerful lesson — “The needs of the many outweigh the needs of the few…. or the one.”

REFERENCES and NOTES:
Lockyer v. City and County of San Francisco, 33 Cal.4th 1055 (2004)

In re Marriage Cases, 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384] (2008)

http://ecf.cand.uscourts.gov/cand/09cv2292 (evidence cited in Perry v. Schwarzenegger)

PX00011 California Voter Information Guide, California General Election, Tuesday, November 4, 2008 at PM 003365

Lawrence v Texas, 539 US 558, 571 and 582 (2003) [The Court struck down sodomy laws. Scalia, J, dissenting: “If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct * * * what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.” “Tradition alone cannot support legislation.”];

Everson v Board of Education of Ewing Township, 330 US 1, 15 (1947)

Washington v Glucksberg, 521 US 702, 719-720 (1997). [When legislation burdens the exercise of a right that is deemed to be fundamental, the government must show that the intrusion withstands strict scrutiny. (ie, the toughest degree of scrutiny)]

Lewis v. Harris, 188 N.J. 415; 908 A.2d 196 (N.J. 2006) [concluded that the right to marriage is NOT a fundamental right as afforded by the NJ state constitution (which mirrors the rights in the US Constitution) ]

Turner v Safely, 482 US 78, 95 (1987) [(“The decision to marry is a fundamental right” and marriage is an “expression of emotional support and public commitment.”]

Zablocki v Redhail, 434 US 374, 384 (1978) [“The right to marry is of fundamental importance for all individuals”]

Cleveland Board of Education v LaFleur, 414 US 632, 639-40 (1974) [“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment”]

Loving v Virginia, 388 US 1, 12 (1967) [“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”]

Griswold v Connecticut, 381 US 479, 486 (1965) [“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions”]

West Virginia State Board of Education v Barnette, 319 US 624, 638 (1943)

Romer v. Evans, 517 US 620, 633 and 635 (1996) [“Laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”].

Williams v Illinois, 399 US 235, 239 (1970) (Equal Protection case involving criminal law. State tried to incarcerate defendant longer because as an indigent, he couldn’t pay attorney fees so the state tried to make him work off the costs, in jail. Held: State can’t extend incarceration based on the status of the defendant (indigency)]

US Dept. of Agriculture v. Moreno, 413 US 528 at 534 (1973)

Palmore v Sidoti, 466 US 429, 433 (1984) [“The Constitution cannot control private biases but neither can it tolerate them.”]

Planned Parenthood of Southeastern Pa v Casey, 505 US 833, 850, (1992) [“Moral disapproval, without any other asserted state interest,” has never been a rational basis for legislation]

Goodridge v. Department of Public Health, 798 N.E.2d 940 (Mass. 2003) [The Massachusetts Supreme Court held that the state may not “deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry.” Chief Justice Margaret Marshall, writing for the majority, wrote that the state’s constitution “affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens,” the state had no “constitutionally adequate reason for denying marriage to same-sex couples,” and “The right to marry is not a privilege conferred by the State, but a fundamental right that is protected against unwarranted State interference.” On the legal aspect, instead of creating a new fundamental right to marry, or more accurately the right to choose to marry, the Court held that the State does not have a rational basis to deny same-sex couples marriage on the ground of due process and equal protection.]

http://old.nationalreview.com/document/bush200402250934.asp (Transcript of President Bush’s Speech on February 25, 2004, endorsing a constitutional amendment defining marriage as between one man and one woman)

http://www.actforyouth.net/documents/may02factsheetadolbraindev.pdf (Cornell University Study on Adolescent Brain Development)

http://www.ncbi.nlm.nih.gov/bookshelf/br.fcgi?book=sgdrinkt&part=A91013 (Publications and Reports of the Surgeon General)

http://www.heritage.org/Research/Reports/2004/05/A-Defining-Moment-Marriage-the-Courts-and-the-Constitution (Matthew Spalding, PhD. “A Defining Moment: Marriage, the Courts, & the Constitution,” The Heritage Foundation, May 17, 2004)

http://www.reflector.com/opinion/cal-thomas-muslim-fanatics-are-right-about-whats-wrong-america-44108 (Cal Thomas, “Muslim Fanatics are Right About What’s Wrong With America,” Daily Reflector, Aug. 11, 2010)

http://tech.mit.edu/V124/N5/kolasinski.5c.html (Adam Kolasinsky, ”The Secular Case Against Gay Marriage,” MIT University, Feb. 17, 2004)

http://www.lewrockwell.com/williams-w/w-williams45.html (Walter Williams, “Is Profiling Racist?”, (or “Not Every Choice Based on Race Represents Racism”) posted on LewRockwell.com and in the Daily Reflector, Aug. 5, 2010)

http://www.sfgate.com/cgibin/article.cgi?f=/c/a/2010/08/04/MNQS1EOR3D.DTL#ixzz0vt3wahAG

Note – The statewide vote on Proposition 8 was 52% YES and 47% NO.

February 25, 2004, 9:34 a.m. [ http://old.nationalreview.com/document/bush200402250934.asp ]
Defending Marriage
( This is the text of a speech delivered by President George W. Bush on Feb. 24, 2004, in the Roosevelt Room of the White House, in defense of a Constitutional amendment to define marriage as between a man and a woman).

Good morning. Eight years ago, Congress passed, and President Clinton signed, the Defense of Marriage Act, which defined marriage for purposes of federal law as the legal union between one man and one woman as husband and wife.

The Act passed the House of Representatives by a vote of 342 to 67, and the Senate by a vote of 85 to 14. Those congressional votes and the passage of similar defensive marriage laws in 38 states express an overwhelming consensus in our country for protecting the institution of marriage.

In recent months, however, some activist judges and local officials have made an aggressive attempt to redefine marriage. In Massachusetts, four judges on the highest court have indicated they will order the issuance of marriage licenses to applicants of the same gender in May of this year. In San Francisco, city officials have issued thousands of marriage licenses to people of the same gender, contrary to the California family code. That code, which clearly defines marriage as the union of a man and a woman, was approved overwhelmingly by the voters of California. A county in New Mexico has also issued marriage licenses to applicants of the same gender. And unless action is taken, we can expect more arbitrary court decisions, more litigation, more defiance of the law by local officials, all of which adds to uncertainty.

After more than two centuries of American jurisprudence, and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization. Their actions have created confusion on an issue that requires clarity.

On a matter of such importance, the voice of the people must be heard. Activist courts have left the people with one recourse. If we are to prevent the meaning of marriage from being changed forever, our nation must enact a constitutional amendment to protect marriage in America. Decisive and democratic action is needed, because attempts to redefine marriage in a single state or city could have serious consequences throughout the country.

The Constitution says that full faith and credit shall be given in each state to the public acts and records and judicial proceedings of every other state. Those who want to change the meaning of marriage will claim that this provision requires all states and cities to recognize same-sex marriages performed anywhere in America. Congress attempted to address this problem in the Defense of Marriage Act, by declaring that no state must accept another state’s definition of marriage. My administration will vigorously defend this act of Congress.

Yet there is no assurance that the Defense of Marriage Act will not, itself, be struck down by activist courts. In that event, every state would be forced to recognize any relationship that judges in Boston or officials in San Francisco choose to call a marriage. Furthermore, even if the Defense of Marriage Act is upheld, the law does not protect marriage within any state or city.

For all these reasons, the Defense of Marriage requires a constitutional amendment. An amendment to the Constitution is never to be undertaken lightly. The amendment process has addressed many serious matters of national concern. And the preservation of marriage rises to this level of national importance. The union of a man and woman is the most enduring human institution, honoring — honored and encouraged in all cultures and by every religious faith. Ages of experience have taught humanity that the commitment of a husband and wife to love and to serve one another promotes the welfare of children and the stability of society.

Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society. Government, by recognizing and protecting marriage, serves the interests of all. Today I call upon the Congress to promptly pass, and to send to the states for ratification, an amendment to our Constitution defining and protecting marriage as a union of man and woman as husband and wife. The amendment should fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage.

America is a free society, which limits the role of government in the lives of our citizens. This commitment of freedom, however, does not require the redefinition of one of our most basic social institutions. Our government should respect every person, and protect the institution of marriage. There is no contradiction between these responsibilities. We should also conduct this difficult debate in a manner worthy of our country, without bitterness or anger.

In all that lies ahead, let us match strong convictions with kindness and goodwill and decency.

Thank you very much.