Ninth Circuit, Gay Marriage, and the Rule of Judges



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is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade.”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.

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