This column by ACRU Senior Legal Analyst Ken Klukowski was published June 6, 2012 on Breitbart.com.
Either the U.S. Supreme Court will take up the question of same-sex marriage, or it will become a constitutional right in the largest state in the nation later this year.
In 1993, the Hawaii Supreme Court ruled in Baehr v. Lewin that defining marriage as the union of one man and one woman--the only definition it has had for 2,000 years of Western Civilization--might be unconstitutional. In 2003, the highest court of Massachusetts became the first to take the next step, ruling in Goodridge v. Dept. of Public Health that Massachusetts' law defining marriage as one man and one woman violated the Massachusetts Constitution. Six states (and D.C., which is not a state but often forgets that fact) now have same-sex marriage, usually through court ruling.
In the aftermath of the Hawaii court 1993 decision and the Massachusetts court 2003 decision, states across the country began passing state statutes and amending state constitutions to reaffirm marriage between one man and one woman. The most recent of those constitutional amendments became law just last month in North Carolina. To date, 39 states have reaffirmed traditional marriage--nine by statute, and 30 by constitutional amendment, with more on the way. And in 1996 Congress passed the Defense of Marriage Act, defining marriage as one man and one woman for federal purposes and providing that if one state creates same-sex marriage, other states are not required to recognize those marriage licenses.
California was one of the states preserving traditional marriage. First came Proposition 22, which the voters of California adopted as a referendum in 2000. But in 2008, the California Supreme Court ruled 4-3 that Proposition 22 violated the California Constitution. So the citizens of the Golden State acted yet again, enacting Proposition 8 to amend the California Constitution, reaffirming marriage as one man and one woman.
Then a new lawsuit was filed, arguing that this part of the California Constitution violates the U.S. Constitution because the Fourteenth Amendment of the U.S. Constitution guarantees a right to same-sex marriage, despite the fact that the word "marriage" never appears in the Federal Constitution and those who ratified the Fourteenth Amendment in 1868 would be astounded to learn that this amendment--which was intended to stop racial discrimination after the Civil War--was also rewriting the definition of marriage.
Yet the case went before a homosexual federal district judge in San Francisco who has contemplated marrying his partner, who predictably decided that he had a constitutional right to do so and Californians could not amend their state constitution to the contrary. From there it went to the U.S. Court of Appeals for the Ninth Circuit, the most liberal of the federal appeals courts.
At the Ninth Circuit, a three-judge panel including two of the most liberal judges in America--Stephen Reinhardt and Michael Hawkins--ruled 2-1 that the district court was correct. They wrote an opinion narrowing the district court's decision, however, noting that during the months before Proposition 8 was adopted, thousands of same-sex couples got marriage licenses in California. The panel held that this case concerned whether such marriage licenses could be invalidated after the fact, and that such an invalidation is what would be unconstitutional.
Charles Cooper, lead counsel for the defenders of traditional marriage in this case of Perry v. Brown, petitioned the full Ninth Circuit to rehear the case en banc, meaning that the case would go before an eleven-judge panel for reconsideration. Today the Ninth Circuit voted against rehearing the case.
Dissenting from the denial, Judge Diarmuid O'Scannlain--an appointee of Ronald Reagan who is regarded as one of the best appellate judges in America--wrote an opinion for several of his colleagues criticizing this decision. Noting that President Barack Obama's recent endorsement of gay marriage included a statement that he believes states are free to decide this issue rather than the federal government, Judge O'Scannlain opined:
"Today our court has silenced such a respectful conversation. Based on a two-judge majority's gross misapplication of [1996 Supreme Court precedent], we have now declared that animus [i.e., hostile intentions] must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia. Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of [Supreme Court precedent] that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from [other federal courts] who have since interpreted it. We should not have so roundly trumped California's democratic process without at least discussing this unparalleled decision in an en banc court."
One of only two things can happen now. One is the U.S. Supreme Court will take the case to either affirm or reverse the Ninth Circuit. If not, it will permanently become the law in the states within the Ninth Circuit (which includes nine states--California, Oregon, Washington, Arizona, Nevada, Idaho, Montana, Hawaii, and Alaska) that if a single court orders same-sex marriage, any later attempt to change the law back to traditional marriage is automatically unconstitutional. And it becomes the foundation for a final ruling that same-sex marriage is a constitutional right.
Absent from the Ninth Circuit's panel decision is any serious discussion about polygamy. The American definition of marriage is the union of (1) two persons, (2) of opposite sex, (3) who are not close blood relatives. If marriage is now the union of consenting adults who profess to love each other, there is no rule of constitutional law under which you can remove the opposite-sex requirement from this definition, but still insist that it can only be two persons. This is all the more true because in over four dozen nations around the globe polygamy is legal, since in the Islamic faith--the world's second-largest religion--a Muslim man can be married to up to four women. The Supreme Court rejected a right to polygamy in 1878 in Reynolds v. United States, but the reasoning in that case would be superseded by these new arguments against traditional marriage if same-sex marriage is a constitutional right.
So this case will now be offered to the Supreme Court. By saying this case is about people who received a temporarily-legal marriage license, Judges Reinhardt and Hawkins are trying to give the Supreme Court a reason not to take this case, since no other state had same-sex marriage and later reversed it through constitutional amendment. But the justices will still have the option of taking this case, and if so same-sex marriage will be center-stage later this year.