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-Divided 9th Circuit Rules California’s Prop 8 Gay-Marriage Ban ‘Unconstitutional’

by Dr. D ~ February 8th, 2012

Pro and anti-Proposition 8 protesters rally in...

                      (Image via Wikipedia)

A 3 judge panel of the 9th Circuit Court of Appeals in a 2-1 ruling (2/7/12) declared California’s Proposition 8 to be unconstitutional. Proposition 8 in effect banned gay marriage in the state by defining marriage as between one man and one woman.

2 out of the 3 judges on the panel concluded that the proposition served no purpose other than to discriminate against a minority and therefore it is unconstitutional. Judge Stephen Reinhardt wrote the majority opinion:

"Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships."

The 3 judge panel did unanimously agree that ProtectMarriage, the backers of Proposition 8, had legal "standing" to appeal the 2010 ruling against the proposition in US District Court under Judge Vaughn R. Walker. However, they also unanimously rejected the challenge that Walker’s ruling should be set aside since the judge had a vested interest in the case as a homosexual who was himself in a long term same-sex relationship.

The 9th Circuit panel also decided to maintain a stay on gay marriage in the state until any appeals are complete.

Within the next 2 weeks the supporters of the proposition must decide where to go next with their appeal. They could ask for the entire 9th Circuit to consider the case or refer it on to the US Supreme Court.

Response: Is marriage between a man and a woman really ‘unconstitutional?’ That is all Prop 8 actually said – that marriage was between one man and one woman. Was the only purpose of the proposition to show “disapproval of them (gays and lesbians) and their relationships" or was it crafted to maintain traditional marriage as it had been defined for nearly the entire history of the state and the nation? The latter is really the case. 

The proposition itself was written and well on its way towards getting enough signatures for voter consideration before the California Supreme Court allowed gay marriages in the state. To declare that the proposition was written to reverse the court decision is not exactly correct. The decision of two 9th Circuit judges continues the judicial activism that has overturned the vote of millions of Californians.

While it is being celebrated in the media as a victory for Gay rights the case is far from over. It was a major victory that supporters of the proposition received legal standing at all.  The state Attorney General was supposed to support the vote of the people in court but refused leaving proposition without any legal support.

One legal scenario would have denied standing to the proposition supporters and therefore would have made it impossible to appeal the case. At least now it continues on hopefully to the Supreme Court. One should remember that the 9th Circuit is the most liberal and the most overturned Appeals Court in the land.               *Top

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4 Responses to -Divided 9th Circuit Rules California’s Prop 8 Gay-Marriage Ban ‘Unconstitutional’

  1. Matt

    Well, yeah of course it’s unconstitutional. The primary argument for those that are religious is that it violates the “sanctity” of marriage. Sanctity means something is holy or sacred.
    To be sacred means that it is for the service or worship of deity
    The first amendment states “[t]he First Amendment provision that prohibits the federal and state governments from establishing an official religion, or from favoring or disfavoring one view of religion over another.”
    So really, homosexuals have a right to marry each other, and religious people can’t dispute it.

  2. Dr. D

    We will see how the Supreme Court ends up ruling on this. Meanwhile ‘religious people’ will continue to dispute same-sex marriage regardless.

  3. Brian

    By extension of Matt’s argument, any value or moral position that has a religious basis is prohibited by the First Amendment. Hence, since the Bible prohibits murder, and religious people subscribe to the view that murder is wrong based upon a faith-based moral prospective, the government should not be allowed to prohibit murder.

    The better argument is this: marriage is a long (many millenia) accepted institution which has religious roots and underpinnings, as do countless other aspects of our society. It has, in western society, always been an institution whereby one man and one woman formed a social, economic and reproductive unit (note that a same-sex couple cannot form a “reproductive unit”). Marriage is, and always has been, a relationship about children – a relationship whose central component was the creation of children, who would then be fostered and nurtured within this relationship. The problem with the current push for homosexual marriages is not about the rights of homosexuals – – it is about a fundamental change in the definition of a central institution in our society, to make it into something that it has not been, and has NEVER been, by a very small minority imposing its will upon all.

    Once the Rubicon is crossed, where do we stop? What societal relationship, what social value, what right, what moral precept cannot be redefined in the name of “rights” or “equal protection” to convert it into some bastardized version of itself? If the basic terms of the social contract can be fundamentally redefined at the whim of any group within society, then the social contract itself has no meaning, and we live in a society defined by anarchy rather than by rights.


  4. Dr. D

    Thanks Brian,
    Good points and with clarity as usual

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