Jeffery J. Ventrella [Senior Vice President of Strategic Training, Alliance Defense Fund]: "The California Supreme Court in an innocuously titled 4-3 split decision, In re Marriage Cases, sets forth an anything but innocuous ruling that imposes same-sex "marriage" despite a valid contrary expression by the citizens in the 2000 vote – 61% to 39%. Aside from the seismic effect created by the majority's rank judicial activism, lies the Court's rationale for its ruling: the assertion that homosexual behavior is entitled to "strict scrutiny" because homosexuals comprise a "suspect class." This assertion is fundamentally flawed legally, empirically, biologically, and rationally. And, this is not overstatement.

In the context of the battle to preserve marriage, many bright (but erroneous) scholars have tirelessly argued for same-sex "marriage." They consistently assert that the extant marriage laws should be deemed unconstitutional because they allegedly "discriminate on the basis of sex." Advocates of this view include Dr. Andrew Koppelman of Northwestern University School of Law and Professor William Eskridge of Yale Law School. Both men have written scholarly and lengthy books attempting to make this point. The California Court, however rejected these scholars' rationale. Instead, the California Court has boldly gone where no federal court has gone: the court concluded that homosexuals are a "suspect class" and thereby are entitled to a legal status just like race and ethnicity. It is the court's reasoning that is suspect.

Ask this question: Just how are "members" of this supposed "suspect class" to be identified? Are they those who possess homosexual ideations? Are they those who engage in homosexual conduct? If so, how often. Does one "event" permit membership into the "suspect class?" If not, why not? Is membership simply a matter of self-assertion, a product of self-serving autonomy? What if one "identifies" as being heterosexual, but engages in homosexual behavior for pay as a prostitute? What if one "identifies" as being homosexual, but engages in heterosexual behavior for pay as prostitute? What if one "identifies" as heterosexual, but has a moral lapse, ala Ted Haggard? Here is the deep analytic flaw in the court's assertion: behavior (ethics) is being confused with status (metaphysics).

Moreover, those who contend that sexual behavior is legally "like race" crash upon the shores of scientific reality: race and ethnicity are genetic; sexual behavior is not. But, what about the so-called "gay gene?" Well, hear the actual words of the actual genetic researcher, Simon LeVay: "I did not prove that homosexuality is genetic, or find a genetic cause for being gay. I didn't show that gay men are born that way—the most common mistake people make in interpreting my work. Nor did I locate a gay center in the brain." But, hey, let's not confuse the law with the facts.

And, in any event, even if homosexual behavior were to be shown to be like race, it would be irrelevant to the legal question at hand. This is because the marriage laws do not inquire about "sexual orientation." No DOMA bars practitioners of homosexual behavior from marrying. And, no marriage license application inquires about intimate sexual practices. The law is utterly neutral as to "sexual orientation," and therefore, "sexual orientation" is legally irrelevant. Consequently, it is the California court's ruling that is suspect . . . and manifestly so. California's citizens should divorce themselves from their court's extreme deviation from rational jurisprudence."