| May 27, 2009
Advance for May 30, 2009
A Defeat for Same-Sex Marriage
By Mike McManus
The liberal California Supreme Court, which issued a ruling legalizing same-sex
marriage only a year ago, reversed itself and upheld, by a 6-1 vote, the
constitutionality of Proposition 8, which added this sentence to the state's
Constitution: "Only marriage between a man and woman is valid or recognized in
However, it also ruled that the 18,000 same-sex couples who "married" between
May and the passage of Prop 8 in November, remain valid. Clearly, the court
ignored the plain meaning of the amendment which it declared constitutional in
the same decision.
Nevertheless, some feared that the court which had overturned a referendum in
which Californians voted 61% against counterfeit marriage in 2000 - would do so
In this week's decision, the Court said its role is "limited to interpreting and
applying the principles and rules embodied in the California Constitution,
setting aside our personal beliefs and values."
Sounds noble, but if the court had really set aside its personal beliefs, it
would not have grandfathered in the 18,000 same-sex unions performed last year.
That exemption for existing marriages is "a ticking time bomb" that could give a
federal court a way to declare Prop 8 a violation of the U.S. Constitution,
asserts Family Research Council President Tony Perkins. "You have people in the
same state being treated differently, so you have an equal protection clause
challenge in the making."
In fact, the intent of the court may well have been to issue a contradictory
opinion that it knew could eventually wind up in the U.S. Supreme Court.
Why didn't the California Supremes simply vote to overturn the Constitutional
Amendment? In that state, the public can vote to "recall" judges who they think
have acted improperly. Prop 8 supporters openly talked about such an action, had
the vote of seven million Californians on the Constitutional Amendment been
ignored by the court.
In the three months since the case was argued, three more states have legalized
same-sex marriage, joining Massachusetts and Connecticut, which had already done
On April 3, the Iowa Supreme Court voted unanimously to strike down a state law
that limited marriage to couples of the opposite sex. It cited the earlier
California Supreme Court ruling 4-3 to overturn the 2000 referendum.
Within a week, the Vermont Legislature voted narrowly to override a governor's
veto of gay marriage legislation. Maine passed a same-sex bill on May 6, which
was quickly signed by the governor.
However, California Supreme Court's endorsement of traditional marriage
demonstrates a new court respect for the power of the people on this issue.
When the public is given a voice, it always opposes gay marriage, as it did
twice in California, a determination that would have led to the recall of
Justices who dared flout public will.
A poll by CNN/Opinion Research April 23-26 found that 54 percent of voters say
same-sex unions should not be recognized vs. 44 percent who said they should be
Therefore, the National Organization for Marriage is working hard to overturn
Maine's decision by putting gay marriage on the ballot in November, which now
appears likely. I predict that like California, Maine voters will demonstrate
that the public does not consider same-sex unions to be marriage.
NOM's tactics differ in each state. In the Democratically controlled New
Hampshire Legislature, the issue has been debated for four months. NOM placed
three phone calls to each household, warning that if gays won, religious
liberties would be threatened. NOM was proven right when a same-sex bill that
contained expanded religious protection was defeated by 188-186. Backers of gay
marriage refused to compromise, though Gov. John Lynch said he would sign a bill
with that protection.
Maggie Gallagher, President of the National Organization for Marriage, who is
also a syndicated columnist, blames the press for not covering the issue in New
York, where State Sen. Reuben Diaz of the Bronx, and a Democrat, a surprising
leader of traditional marriage - has gotten little visibility.
Her answer: ads will be running this weekend on a big screen in Times Square and
in the home districts of key legislators.
"We had to bypass the media and go directly to voters," she asserted.
However, on the day after California's Supreme Court's decision, an
unlikely pair of lawyers, two men who represented opposing sides in the Bush v.
Gore case, former U.S Solicitor General Ted Olson and David Boies, announced a
federal law suit to take the Prop 8 case to the U.S. Supreme Court, claiming
gays have a "right" to marriage.
There's no rest for the weary.
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same sex marriage,
abortion and infanticide,