FOR IMMEDIATE RELEASE: February 7, 2012
CONTACT: Anath Hartmann or Elizabeth Ray (703-683-5004)
Group will support efforts to take the issue to the US Supreme Court
WASHINGTON, D.C. — “As sweeping and wrong-headed as this decision is, it nonetheless was as predictable as the outcome of a Harlem Globetrotters exhibition game,” said Brian Brown, NOM’s president. “We have anticipated this outcome since the moment San Francisco Judge Vaughn Walker’s first hearing in the case. Now we have the field cleared to take this issue to the US Supreme Court, where we have every confidence we will prevail.”
San Francisco federal court judge Vaughn Walker ruled in 2010 that Proposition 8 violates the 14th amendment of the US Constitution. If allowed to stand, the ruling could invalidate the marriage laws of 43 states that define marriage as the union of one man and one woman. The case is widely expected to go to the US Supreme Court for resolution.
In their 2-1 split decision, the Ninth Circuit opinion [PDF] written by Judge Stephen Reinhardt, held that:
• The proponents of Proposition 8 have the legal standing to appeal the lower court’s ruling, as suggested by an earlier ruling of the California Supreme Court;
• Judge Vaughn Walker did not have a duty to disclose that he was in a long-term committed homosexual relationship throughout the time he was hearing and deciding the case;
• Once “marriage” rights have been granted to same-sex couples by a court, as occurred with the California Supreme Court, they may not be taken away by a state initiative;
• There is no rational basis to support the constitutionality of Proposition 8 and it is thus unconstitutional as violating the 14th Amendment’s equal protection clause.
“Never before has a federal appeals court – or any federal court for that matter – found a right to gay marriage under the US Constitution,” said constitutional scholar John Eastman, who is chairman of NOM. “The Ninth Circuit Court of Appeals is the most overturned circuit in the country, and Judge Stephen Reinhardt, the author of today’s absurd ruling is the most overturned federal judge in America. Today’s ruling is a perfect setup for this case to be taken by the US Supreme Court, where I am confident it will be reversed. This issue is the Roe v Wade of the current generation, and I sincerely doubt the Court has the stomach for preempting the policy judgments of the states on such a contentious matter, knowing the lingering harm it caused by that ruling.”
Eastman is the founding Director of the Center for Constitutional Jurisprudence at the Claremont Institute and is a constitutional law professor and former Dean at Chapman University School of Law. A former US Supreme Court Clerk, Eastman has participated in over 60 cases before the US Supreme Court.
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To schedule an interview with Brian Brown, President of the National Organization for Marriage, or John Eastman, chairman of the National Organization for Marriage, please contact Elizabeth Ray (x130), eray@crcpublicrelations.com, or Anath Hartmann, ahartmann@crcpublicrelations.com, at 703-683-5004.
50 Comments
Dang Constitution. Maybe we can repeal that too.
We all knew it would happen. SCOTUS, here we come!
"Proposition 8 serves no purpoose, and has no effect, other than to lessen the status of human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for "laws of this sort.""
Well said, Judge Reinhardt.
Will this be taken to the Supreme Court before or after a Constitutional Amendment is ratified defining marriage as only between one man and one woman?
John, I would assume before, as ratification of such an amendment will never happen. If same sex marriage were truly unconstitutional, then there would be no need to amend the Constitution.
Here we come USSC and once the USSC shoots down SSM. Then, All the SSM activists can go home crying as that will be the end of the SSM.
There will be no Constituional amendment. And there will be no Prop 8.
Yes Randy, we bet you will shoot.
Randy, why do you think SCOTUS will uphold proposition 8 considering it has now been struck down twice?
No surprise here. The Ninth Circuit is famously out of touch with reality, part of the reason Newt would get rid of them altogether.
I told you guys its not a question of if; it's just when. That was a close one though.
Why are all of the Republican Presidential Candidates being asked by NOM to support a Constitutional Amendment defining marriage as between one man and one woman if the U.S. Constitution does not require same-sex marriage to be recognized for the sake of equality?
We need more Mormon Judge's like Smith to put and end to judicial activism. At least he tried, just out numbered by activists.
"why do you think SCOTUS will uphold proposition 8 considering it has now been struck down twice?"
Because as constitutional scholar John Eastman said: “The Ninth Circuit Court of Appeals is the most overturned circuit in the country, and Judge Stephen Reinhardt, the author of today’s absurd ruling is the most overturned federal judge in America. Today’s ruling is a perfect setup for this case to be taken by the US Supreme Court, where I am confident it will be reversed."
The U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states. For example, few states still had laws requiring racial segregation or outlawing interracial marriage by the time the Court struck those laws down. Most states had already struck down or repealed their own laws against same-sex intimacy when the Supreme Court finally invalidated Texas’s law in Lawrence. Even Ruth Bader Ginsburg, one of the most liberal members of the court, has indicated that it is counterproductive for the Court to go "too far too fast." Although she tirelessly defends abortion rights, she has still said that "[t]he court bit off more than it could chew" when it decided Roe v. Wade.
It is highly unlikely that the Supreme Court will overrule 30 state constitutional amendments defining marriage as being between one man and one woman and 31 out of 31 referendums and force gay marriage on everyone. Any lawyers bringing such a case before the Court will need favorable votes from five of the nine justices. As yet another Constitutional law scholar Andrew Koppelman put it, "When I try to count the votes in favor of same-sex marriage on the Supreme Court, I have trouble getting to one."
"We need more Mormon Judge's like Smith to put and end to judicial activism."
Have you considered that Judge Smith might well just be an activist for YOUR side of the argument? And when you insist on tagging him as Mormon, instead of assuming that he is impartial no matter what his religious background, you only perpetuate that? And that he was out numbered by judges who were ruling based on the merits of the case and the Constitution of the United States?
Make no mistake, this ruling had absolutely nothing to do with the US Constitution. It is liberal activism at its worst.
"No surprise here. The Ninth Circuit is famously out of touch with reality, part of the reason Newt would get rid of them altogether."
Barb, you do realize that no president gets to overhaul the judicial system and throw out judges because he doesn't like them, right? I mean, apparently NEWT doesn't, but that only goes to show how ill advised it would be to let him anywhere near the White House.
I just browsed the ruling and it seems very narrow - as it currently sits, it will only impact California because no other state has allowed ssm and then taken it away. If the USSC were to concur with the appeals court, the impact would only be limited to California. The USSC generally likes to keep narrow rulings and avoid precedent.
In order to come to its conclusion the 9th had to manufacture a path to heightened scrutiny; not even the outrageous Vaughn Walker had the audacity to attempt to declare his proclivity to be worthy of heightened scrutiny.
Under rational review this debacle fails on all fronts; under heightened scrutiny they still have to convince SCOTUS that the laws of nature are no longer relevant.
does anyone know if a desenting opinion by the other judge is available anywhere. Can MOM post it?
The fact that a federal court has just said that marriage rights cannot be taken away once given to them could now be used in court if they ever vote to take away marriage rights in New Hampshire (from a precedent standpoint).
anonygrl wrote:
"you do realize that no president gets to overhaul the judicial system and throw out judges because he doesn't like them, right?"
So what you are saying is that when Thomas Jefferson cut the federal judiciary in half because he did not like them Jefferson did not have the right to do so?
Guess Jefferson was fortunate that he was one of the founding fathers and SCOTUS did not have the sack to tell Jefferson that he did not mean what he thought he meant when he first helped to draft the constitutional right he used to justify firing fifty percent of the judiciary because he did not like them.
NObama "can't do" most of what he does. Maybe anonygrl should tell him.
I believe that we should not be picking and choosing when we uphold the principle of state's rights. Marriage has always been a state level issue, for which we should not be advocating an amendment to the US Constitution.
Gays will never stop fighting this battle for what they feel are their fundamental inalienable equal rights. The arm of history is leaning in their favor. Not just in recent court rulings or legislative measures but in populous polls.
No one will ever force you to attend, condone, officiate or enter into a same-sex marriage. I would honestly say the same thing to those opposed to miscegenation regarding interracial marriages. As your above mentioned rights and beliefs will be honored, I would ask you not to infringe upon other's personal rights and beliefs to do as they feel fit with their lives.
There is no designated state religion and every religion defines marriage and its rules differently. Civil marriage simply codifies legal distinctions pertaining to a marriage contract, not the spiritual.
The Bible tells us to be charitable and live our own lives with virtue. Not to judge the actions of others, as that is only God's duty. So please stop spending money energy and time that could be used toward building schools and hospitals; providing medicine, clothing, food and shelter to the poor; caring for our orphans, widows, elderly, infirm, veterans.
Every culture and religion across time has defined marriage differently. They may continue to do so. Legally, it is evolving but that doesn't infringe on other's rights.
Marriage has even evolved since biblical times when men were able to take many wives and slavery was acceptable.
Please end this uphill battle and use your resources toward greater causes.
Kostas (writes)
"I believe that we should not be picking and choosing when we uphold the principle of state's rights. Marriage has always been a state level issue, for which we should not be advocating an amendment to the US Constitution."
Many Federaly protected constitutional rights are administered by state agencies but still defined and protected by SCOTUS.
People are (intentionally?) misreading Supreme Court case law on the subject of marriage: and making the same mistake the New York Court points out in its recent decision. Discussing the Supreme Court precedents of Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942)
Judge Graffeo noted….
“To ignore the meaning ascribed to the right to marry in these cases and substitute another meaning in its place is to redefine the right in question and to tear the resulting new right away from the very roots that caused the U.S. Supreme Court and this Court to recognize marriage as a fundamental right in the first place.”2
2 - Andersen v. King County (J. Graffeo concurring)
The only consistant ruling from SCOTUS is to invalidate all State laws that define marriage as other then 1 man & 1 woman.
the us supreme court will reverse ridicoulus decision today that we all expected from a liberal court. then the gay roghts supporters can go home and cry AGAIN.
Rich: "no other state has allowed ssm and then taken it away."
Actually, yes....Maine's elected leaders voted for gay marriage and then it was repealed, narrowly, in a vote due to the incredible lies and distortions of NOM. It's not going to happen again in November. Maine will vote for gay marriage. Trust me.
Here are my comments.
The Court avoided addressing "the question of the constitutionality of a state's ban on same-sex marriage", but instead whether the state "may strip a group" of a benefit "they previously enjoyed on terms on equality with all others in the state"
This ruling will have a direct effect on the Hawaii marriage lawsuit. There, the plaintiffs are challenging Hawaii's marriage amendment. In Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (Haw. Sup. Ct. 1993), the Hawaii Supreme Court held that the state marriage law was subject to strict scrutiny. Thus, when the state's constitution was amended, it stripped same-sex couples, but not others, of strict scrutiny protections under the Hawaii Constitution. Unless and until this ruling is reversed or vacated, the judge in the Hawaii case must find in favor of the plaintiffs if they themselves had those strict scrutiny protections back then.
Here is the key. The "group...stripped of the benefit" were same-sex couples who could have "married" the morning of the election. But not all persons today could have "married" someone of the same sex the morning of the election, either because they were too young, or did not meet residency requirements. Thus, Proposition 8 did not strip them of any benefits, because they never had such benefits in the first place.
Applying this to the Hawaii case, if the plaintiff couple would have had strict scrutiny protections if they had sued for a marriage license to "marry" someone of the same sex the morning of the election,then this ruling mandates judgment in their favor. If they did not, on the basis that they could not have married on other grounds for some reason, then the ruling does not apply to their case.
But in trying to avoid a conflict with Baker v. Nelson, 409 U.S. 810, 34 L.E.2d 65, 93 s. Ct. 37 (1972), the Court ran afoul of another Supreme Court case, Crawford v. Los Angeles Board of Education, 458 U.S. 527 (1982). In Crawford, the Supreme Court, in upholding a law, rejected "the contention that, once a State chooses to do "more" than the Fourteenth Amendment requires, it may never recede....this interpretation has no support in the decisions of this Court" id. at 535. Thus, it is irrelevant for equal protection analysis if same-sex couples once had the right to the state status of marriage. If extending the status to same-sex couples is "more" than the Fourteenth Amendment requires, then "reced[ing]" is not prohibited by the amendment. Only if the extension of the status of "marriage" to same-sex couples, if extended to opposite-sex couples, were required, could the withdrawal of "marriage" from same-sex couples, but not opposite-sex couples, be forbidden.
Under Crawford , the question of whether the state "may strip a group" of a benefit "they previously enjoyed on terms on equality with all others in the state" depends on the answer to "the question of the constitutionality of a state's ban on same-sex marriage"
Hawaii had held that bans on same-sex "marriage" were subject to strict scrutiny under state constitutional challenges. Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (Haw. Sup. Ct. 1993) The Hawaii marriage amendment took away strict scrutiny protections for same-sex couples, but not opposite-sex couples.
The constitution ought to be read as requiring that the relationships and purported "families" of same-sex couples be officially classified as inferior to those of opposite-sex couples meeting the requirements [being opposite-sex being first among them] for marriage.This is a matter of general welfare,not equal protection...that those inclined to form same-sex couples call themselves "gay or lesbian" means only that they have selfish delusions about homosexuality of no relevance whatever to the facts and law.
People wanting to do something can not define them as a group with a right to do it.
Wow, what dishonest press release.
The court's decision was framed very narrowly, based on the unusual situation in California (where all of the legal incidents of marriage have already been granted to domestic partnership, so that the ONLY effect of Prop 8 is whether a same sex union will be called a "marriage" under law). No threat to the marriage of laws of 43 states. That's simply a lie.
Also, Eastman is lying (and he knows it) when he says that the court found a right to gay marriage in the Constitution. They did not. They found that the constitutional right to equal protection was violated by Prop 8, because it removes an important existing right (established under CA law), without good justification. True conservatives would support the notion that the state has to have a reason before enacting discriminatory laws.
Another lie: the opinion did not say that marriage rights cannot be withdrawn once granted. They said you can't withdraw them without justification.
The truth is that your side did not offer any rational basis for Prop 8. It's based solely on your desire to discriminate and that is transparently obvious when your arguments are subjected to fair scrutiny.
You're losing.
The court had no basis for finding inappropriate "discrimination" in granting preference for forms of relationship the general welfare requires be perpetually guaranteed that preference.Characterizing those wishing to engage in a practice as a group with a right to public approval thereof is dangerous.
The entire premise of "being gay" should be regarded as legally meaningless and irrelevant and no rights attach thereto.It is a state of being selfishly wrong about the implications of suffering from the disorder of same-sex sexual attraction and one is cured of it by achieving an honest understanding of those implications.
I explained the flaw with that line of reasoning.
In trying to avoid a conflict with Baker v. Nelson, 409 U.S. 810, 34 L.E.2d 65, 93 s. Ct. 37 (1972), the Court ran afoul of another Supreme Court case, Crawford v. Los Angeles Board of Education, 458 U.S. 527 (1982). In Crawford, the Supreme Court, in upholding a law, rejected "the contention that, once a State chooses to do "more" than the Fourteenth Amendment requires, ....this interpretation has no support in the decisions of this Court" id. at 535. Thus, it is irrelevant for equal protection analysis if same-sex couples once had the right to the state status of marriage. If extending the status to same-sex couples is "more" than the Fourteenth Amendment requires, then "reced[ing]" is not prohibited by the amendment. Only if the extension of the status of "marriage" to same-sex couples, if extended to opposite-sex couples, were required, could the withdrawal of "marriage" from same-sex couples, but not opposite-sex couples, be forbidden.
Under Crawford , the question of whether the state "may strip a group" of a benefit "they previously enjoyed on terms on equality with all others in the state" depends on the answer to "the question of the constitutionality of a state's ban on same-sex marriage"
based on the unusual situation in California (where all of the legal incidents of marriage have already been granted to domestic partnership
It is not that unusual.
Washington, Illinois, Nevada, Hawaii, and Oregon have pretty much the same thing.
I'm not interested in re-arguing the merits of the case. The court explained why they read Crawford differently than you. My point was that Eastman was lying when he said the court found the right of gay marriage in the Constitution. They plainly didn't. They bent over backward to avoid it. Eastman surely knows that. He lied.
That explanation is flawed. The Court argued that Crawford does not control this case because it did not control Romer . "Yet Amendment 2, in explicit terms, does more than repeal or rescind these provisions. It prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians." 517 U.S. 620 at 624 Thus, what was at issue at Romer was not the mere repeal, but the prohibition of "all legislative, executive or judicial action" designed to protect homosexuals. It was this prohibition which was subject to review.
Furthermore, the provisions were not really repealed. The anti-discrimination statutes protected all sexual orientations. See Boulder Rev. Code § 12-1-1 (defining "sexual orientation" as "the choice of sexual partners, i. e., bisexual, homosexual or heterosexual"); Denver Rev. Municipal Code, Art. IV, § 28-92 (defining "sexual orientation" as "[t]he status of an individual as to his or her heterosexuality, homosexuality or bisexuality"). But Amendment 2 only repealed those protections for homosexuals and bisexuals, leaving the protections for heterosexuals intact. The question in Romer was not whether the state had to protect people from discrimination on the basis of sexual orientation, but whether it could protect heterosexuals but not homosexuals. The Court determined that protecting homosexuals from discrimination was required by the Fourteenth Amendment if such protection was available to heterosexuals. Since it was not "more" than what was required by the Fourteenth Amendment, Crawford was inapplicable.
The applicability of Crawford in this case, therefore, rests on if a state can define marriage as between one man and one woman, while excluding same-sex unions from the definition. If yes, Crawford applies. If no, it does not. Either way, the applicability of Crawford rested on whether a state may permissibly include opposite-sex unions in the institution of marriage while excluding same-sex unions from that institution.
I bet your heads explode when you finally understand what the narrow nature of this ruling actually means. The SCOTUS might not even choose to hear the case because it has been crafted in a way to allow them to avoid the controversy.
The amendment overturned in Romer was overly broad,but we still need to force the distinction "between status and conduct" that the SCOTUS has tried to evade to America's cost.Public policy must disadvantage homosexual activity and disregard homosexual orientation in order to properly serve the general welfare.
• Once “marriage” rights have been granted to same-sex couples by a court, as occurred with the California Supreme Court, they may not be taken away by a state initiative;
Look closely at the above argument by this idiot court and this alone proves why their pro -SSM ruling is hogwash.
This was the exact argument that was already heard by the California Supreme Court. They imposed SSM on the state and yet even they ruled that the people of CA had the right to vote on marriage. As their final verdict showed they agreed that the people of CA had the right to amend their own Consittution. They already ruled on their own verdict that imposed SSM that yes it can be taken away be a state initiative.
As they have already pointed out it is not unconstitutional for the people of CA to amend their own Constitution.
This Ninth Circuit also thumbed their nose at the Florida Supreme Court. In that state the ACLU tried to get the court to overturn the voter approved iniatitive making marriage between one man and one woman. The FSC ruled unanimously that the amendment was constitutional.
Even in Massachusetts where this all began the court that imposed SSM said that the citizens had the right to vote on marriage.
Everyone should have the same rights and access to the benefits of society in a civilized country. Anything less, our collective humanity sufferes. The dissenting vote allowed his religious beliefs to initerfere in his rendering of his opinion, fr this reason he should have reclused himself. We are a nation of laws, and allowing your religion to interfere renders you incapable of doing your duty.
Comment #41 could not be anymore wrong. EVERYONE SHOULD NOT HAVE THE SAME RIGHTS AND ACCESS TO THE BENEFITS OF SOCIETY IN A CIVILIZED SOCIETY. That would be socialism where no one gets rewarded for proper behavior and where the rest must subsidize other peoples conduct.
Our society is full of people who want so called rights and benefits as long as someone else foots the bill. Although I believe in individual rights, it also entails personal responsibility.
Marriage is a perfect example. It is easy for someone not to commit and just have easy sex. It takes effort and finances to have children. Our man/woman marriage rewarded people who stayed together instead of just having random sex. It betowed state benefits on couples as an incentive to procreate. The value of the next generation was important enough that over 1000 benefits were given to man/woman marriages not available to single people.
One of the big evils of state recognition of SSM is that it infers benefits on people who do not deserve them. The same sex couple gets all of the procretion incentive benefits while purposely not procreating. Furhermore these people get these benefits even though all they do is have sex with multiple partners. They have random and easy sex while getting the benefits meant to reward people for staying with one partner. As a result we as society end up subsidizing the homosexuals behavior as we forced to pay for their STD's
SO ABSOUTELY DO NOT GIVE THESE SAME BENEFITS TO SAME SEX COUPLES. It is totally unfair to people who are single. The single people were denied these benefits as these were meant for procreation. Giving these benefits to homosexuals in the name of equallity is a slap in the face to single people and creates additional inequallity for people who are single.
"We are a nation of laws, and allowing your religion to interfere renders you incapable of doing your duty."
Soooo, religious laws like "Thou shalt not kill, thou shalt not commit adultery nor anything like unto it, thou shalt love they neighbor, thou shalt not covet, and thou shalt honor thy father and thy mother..."--are detrimental to doing one's doing?
Respectfully, I disagree with your premise. Studies show that countries with higher levels of religious freedom experience lower levels of crime and violence. When individuals are governed by moral principles, they need fewer laws to compel them to do the right thing.
"doing one's doing?"
Doing one's duty.
VERY well said Marc Antoinre in #25 above.
IF this ruling makes it to SCOTUS, I give it a 75% chance of being upheld by a 6-3 majority, an 85% chance of being upheld by a 5-4 majority, a 50% chance of being upheld by a 7-2 majority, and a 15% chance of being overturned by a 4-5 vote.
Daughter, laws against murder and stealing have a rational basis, they do not come from religious moral principles. All laws in the united states must be grounded on a rational basis, and not rooted solely in a religious tenant doctrine or dogma.
As to your other contention, you are incorrect. Nations with the lowest levels of personal religiousosity, have the lowest crime rates, and rank highest on all measures of societal health.
A male has a male "wife", a female has a female "husband"---and this is normal? Marriage is based on conjugal union. To maintain that same sex marriage should be deemed normal by public definition is blatantly unnatural. Have we gone nuts? It seems a lot of us have!
Well, the Word of God specifies throughout that a "wife" is ALWAYS a woman and that a "husband" is ALWAYS a man, that it's been this way from the very beginning. So, I dunno what the confusion could be.
So....according tot he logic of the Ninth Circuit Court, if the California State Supreme Court were to decide that polygamous or incestuous marriage was a "civil right" -- even for 10 days before being overturned -- then that would be that, there would be no possible way for the citizens of the state to be outraged or change things back to normal.
I guess the California Supreme Court is like the Pope -- infallible and unchangeable.
This is why I (reluctantly) have come around to believing in a Constitutional Amendment to define marriage -- the foes of marriage, the folks who hate tradition and religion and marriage (several posting here) want desperately to redefine marriage as a "super-duper friendship with sex benefits". They are persistent and they have big BIG Hollywood and Wall Street money to pay off legislators and coerce politicians (see: New York State).
The only way decent people can stop this -- and I mean here, stop it permanently so it isn't even a talking point in the future -- is the finality that a Constitutional Amendment would provide.
Should it have to come to this? No. I thought DOMA would protect us, but the Obama Administration (illegally IMHO) refuses to defend it. State after state is being corrupted by big Hollywood and Wall Street money, chasing social engineering and "political correctness".
SO yes -- the time is right NOW to start working on a Constitutional Amendment to define marriage. Or we will end up railroaded by corrupt special interest groups.
(BTW: no law I have ever read "bans" gay marriage, or even refers to sexual orientation. Any gay person can marry any suitable adult partner of the opposite sex, without "proving" they are straight. The only laws I have ever read merely DEFINE marriage as what it has always been understood to be -- a relationship between male and female.)