Proposition 8 Opponents Face Increasing Difficulties

JURIST Guest Columnist Brian Raum, Senior Counsel and Head of Marriage Litigation at the Alliance Defense Fund, argues that the recent California Supreme Court decision on Proposition 8 is just one of many losses for opponents of the amendment that will not bode well for their cause moving forward...
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Those seeking to throw out California's marriage amendment have lost yet another round in their lawsuit, Perry v. Brown, and the loss does not bode well for them going into the next hearing before the US Court of Appeals for the Ninth Circuit on Thursday.

On November 17, the California Supreme Court, in a unanimous decision, agreed with the official proponents of Proposition 8 [PDF] and issued a decision which clearly supports their right to defend the amendment on appeal in the Ninth Circuit. The court flatly rejected the plaintiffs' arguments that the amendment should go undefended simply because the California attorney general and the governor refused to defend it.

The court embraced a long-standing practice allowing official proponents of initiatives to defend those initiatives in court when they are challenged. The court explained that the initiative right is "one of the most precious rights of our democratic process" and that it is the duty of the courts to "jealously guard this right of the people." Consequently, the court held that "[n]either the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters." That is exactly what would have happened if the plaintiffs had their way.

This is the third time that their position on the law has been flatly rejected by an appellate court. The first time was prior to the Perry trial when the plaintiffs' counsel sought documents related to the internal communications of Proposition 8's proponents — documents which are clearly protected under the First Amendment. Unsurprisingly, then-Chief Judge Vaughn Walker of the US District Court for the Northern District of California permitted them to seek these documents. Proposition 8's proponents were forced to seek an immediate ruling from the Ninth Circuit, which issued a scathing decision rejecting the plaintiffs' arguments and reversing Judge Walker's ruling. Then the plaintiffs supported the unlawful videotaping and transmission of the trial, despite the fact that the court's rules prohibited the broadcast of federal trials. Again, Proposition 8's proponents were forced to appeal. This time the issue went all the way to the Supreme Court, which issued an order on the first day of trial halting the taping and planned broadcast. After Judge Walker issued his unprecedented decision striking down the California marriage amendment, its proponents sought to stay the decision pending appeal. Of course, the plaintiffs objected, and Judge Walker denied the request, only to have the Ninth Circuit grant it days later.

The plaintiffs have been on the wrong side of established law from the beginning of this case. They were wrong on the scope of the First Amendment during pre-trial discovery, they were wrong on the lawfulness of broadcasting the federal trial, they were wrong on whether a stay of Judge Walker's decision was appropriate, and they were wrong about whether the proponents of Proposition 8 had standing to appeal and defend it. So why would anyone think that the plaintiffs are right about the amendment's constitutionality? Every appellate court to have considered claims identical to theirs has rejected those claims — including the Ninth Circuit and the Supreme Court.

The plaintiffs insist that they have a fundamental right marry someone of the same sex, knowing full well that the Supreme Court has held repeatedly that a fundamental right is one that is "objectively and deeply rooted in our nation's history and traditions," and that every time the Supreme Court has articulated the fundamental right to marry, it has been in the context of a man and a woman. They also take the extreme position that there is no legitimate reason whatsoever for marriage to have existed for millennia as the union of a man and a woman. Not only that, they insist that anyone who believes otherwise is irrational — "anyone" includes dozens of judges, hundreds of legislators, and millions of Americans who have voted to preserve marriage.

Clearly, the only thing that is irrational is to make such an argument. Those who are pursuing so-called "marriage equality" would do well to better respect those who believe in "marriage integrity."

Brian Raum is Senior Counsel and Head of Marriage Litigation for the Alliance Defense Fund, a US-based organization committed to defending religious freedom. He also is a member of the ProtectMarriage.com legal team that is defending Proposition 8 in Perry v. Brown.

Suggested citation: Brian Raum, Proposition 8 Opponents Face Increasing Difficulties, JURIST - Hotline, Dec. 6, 2011, http://jurist.org/hotline/2011/12/brian-raum-same-sex-marriage.php.



This article was prepared for publication by Stephen Krug, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

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