Ninth Circuit, Gay Marriage, and the Rule of Judges
By Melancton Smith | Wednesday February 8, 2012 at 10:47 AM PDT
Yesterday, to no one’s surprise, the Ninth Circuit Court of Appeals upheld the district court decision striking down Proposition 8 as violating the Fourteenth Amendment. The opinion can be found here courtesy of How Appealing. Similar to retired District Judge Vaughn Walker, the Ninth Circuit found that there was no legitimate reason for the people of California to declare that “marriage” is limited to opposite-sex couples.
What I find most striking about the opinion is the way the panel reached the decision. According to the Court: “Proposition 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry, and this action amounts to a distinct constitutional violation because the Equal protection Clause protects minority groups from being targeted for the deprivation of an existing right with out a legitimate reason.”
So, where did this right that was taken away come from? Since California was admitted to the union in 1850, the state recognized marriage as being between one man and one woman. In 2008, the California Supreme Court discovered/announced that homosexual couples had a fundamental right to marry under the state constitution. (In re Marriage Cases, 183 P.3d 384 (Cal. 2008). That same year, the people of California enacted Proposition 8 to return the definition of marriage to its traditional roots. In fact, only 183 days passed from the California Supreme Court ruling and Proposition 8. Nonetheless, the Ninth Circuit found that “Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade.”
Hang on a second, Ninth Circuit! The people who adopted the state’s constitution never included a specific provision recognizing homosexual marriage, they and the courts understood marriage was limited to opposite-sex couples from 1850 until 2008, it was a state court that upset the applecart and “discovered” this new right in 2008, and the people acted within 6 months to reaffirm the traditional understanding of marriage when they passed Proposition 8.
So this “right” that was taken away was an act of judicial legerdemain and having no sanction in the words of the written constitution or from the ultimate sovereigns of the state of California, the people. Yet, this case turns on rescinding a “right” that was never properly recognized in the first place.
This is, at best, judicial hocus pocus and is more evidence that the people and their representatives do not rule, but the judges do. A state court creates a right in 2008, a federal appellate court places this judicial creation over the clear voice of the people as heard in Proposition 8 and the treatment of marriage from 1850 to the present.
Yes, the rule of judges is upon us.
Tags: California, Civil Liberties, Civil Society, Constitution, Law 
Yes, I noticed that too. Basically, the decision states that once a state court creates a new “right”, it can never be undone because that would be taking that right away. This has to be one the strangest pieces of logic ever coming from any court, ever.
Rick Caird | Feb 8, 2012 | Reply
Why should people and their representatives be allowed to rule anyone except themselves? Each individual should rule themself and only themself.
shemsky | Feb 8, 2012 | Reply
The courts believed that the right to gay marriage did exist in Califiornia, as it was given in the California Supreme Court decision In Re Marriage Cases.
Jonathan M.F. Catalán | Feb 8, 2012 | Reply
Completely unacceptable behavior, those judges need to be removed, they are against the citizens, law and morality.
Joe | Feb 9, 2012 | Reply
Suppose, hypothetically, that a court had discovered that slavery was immoral, and freed the slaves. Suppose then that the plantation owners lobbied to undo that ruling by means of legislature or plebiscite – and were able to do so.
Would you then argue that an appeals court was unable to undo the acts of the people? Are you carrying your hatred of judges, and reverence for legislative acts, a bit too far?
terrymac | Feb 13, 2012 | Reply
The problem is confusion of the role of church and state on both left and right. The left / gay call for a legal ‘right to marry the person they love’ imposes a legal definition on what properly should be a matter left to the church (or anti-church) community of one’s choice. And the same problem holds with the conservative position that there should be a government law restricting what marriage is. Government has no business defining marriage, or judging the morality of it, be it homo, hetero, polygamous or polyandrous because marriage is essentially a matter of individual conscience and principle that is best left to one’s free will and not forced on anyone by the blunt instrument of the Law. There is no ‘right to marry’ because the government has no right to grant it. If you want to get married, go to the theistic (or atheistic) community of your choice. Government should simply regulate civil unions as one of many associations (corporations, partnerships, etc) for the purpose of conducting business, taxation, inheritance, guardianship, etc.
Richard Eisenman | Feb 13, 2012 | Reply
In my mind, another disfavored group are those children who lose their birthright to have both a father and a mother.
It’s been acknowledged for years that war is the health of the state. I fear that judges are beginning to realize that disintegration of the family is the health of our courts.
William | Feb 13, 2012 | Reply
Terry’s and Richard’s points are valid.
First, allowing the government to regulate marriage gives it the power to change it. This comes at the expense of people who believe that marriage should always stay the same.
The answer is to let government fulfill its legititmate role as arbitrator of contracts as Richard brought out. It should not declare “marriage” to any union.
Second, since marriage is unfortunately regulated by government, Terry’s point stands as well. If government is allowed to hand out goodies to people, it is imperitive that discrimination is not used. Marriage has many goodies that civil unions do not give. Not to forget is the role of single people and how they cannot get access to the goodies as well unless the comply to the government’s rules.
While I do not endorse government giving out goodies to ANYONE, it has to be fair in what it does until we end its regulation in order for citizens to be equal under the law.
We went wrong when we allowed government to regulate marriage. It should be a priority of freedom lovers to end government’s control and promotion of it. I do not see society as any better with it promoting marriage. Marriage will fare far better if it is promoted by individuals and families in communities.
Cari Beth | Feb 14, 2012 | Reply
Well said. The whole mess becomes much clearer when you back out of the trees of competing claims and see the forest of individual responsibility. The government has no authority outside of the “business” of relationships IE: taxes, contracts, inheritance. It has no authority to limit the number, sexes, or the “meaning” of the word or the ceremony of marriage.
Howard | Feb 14, 2012 | Reply
AMEN Cari!!! The point of the article would have been a valid one – IF – it were not for the fact that we are born with our rights, they are not given us by the government. We are born with our rights, we live with our rights, and we die with our rights. The only thing that governments can do is respect them, or violate them. That is all. We have the right to for a union with whomever we choose PROVIDED that said union is mutual.
Rather than fighting for governments allow gay marriage, we should be fighting to end governments endorsement of heterosexual marriages. Civil unions (marriages) are our fundamental right and the sooner we stop asking permission to exercise our rights, the sooner we will arrive at liberty.
To those of you homophobes, remember a government powerful enough to force upon you a definition of whom you may or may not love, is a government powerful enough to force upon you ANYTHING! The trouble with liberty is that it’s an all or nothing deal… defend it for others, or you cannot have it yourself.
joe4liberty | Feb 14, 2012 | Reply
Our Constitution is based on the notion that our rights are inherent in us as human beings and derive from nature or nature’s God. The challenge is that, as mortals, we do not fully understand what those rights are. So, we rely on “the people” to decide what they are. If the Constitution wanted judges to decide what our rights are, the document would start with the words, “We, the judges of the United States...”
Slavery was a topic of great and, ultimately, bloody disgreement until abolished by the 13th amendment. From the ancient times, slavery was instituted in most societies, as a “normal” consequence of defeat in war or other punishment. But there was always a sense that it was unnatural. Even St. Augustine felt compelled to rationalize it. Not so with homosexuality.
And let’s not forget that the 14th amendment, upon which the advocates of so-called same-sex marriage build their case, was adopted and ratified solely by men, and no women!
John R. Graham | Mar 5, 2012 | Reply