In a pair of decisions handed down today, the 9th U.S. Circuit Court of Appeals sidestepped the issue of marriage and undercut religious freedom.
A three-judge panel sent the Proposition 8 case — which focuses on California’s marriage protection amendment — to the California Supreme Court to weigh in on. At issue is whether marriage advocates have the right to defend Proposition 8 in court.
Marriage advocates stepped into the case after outgoing Gov. Arnold Schwarzenegger and outgoing state Attorney General (and Governor-elect) Jerry Brown failed to defend Prop. 8. Incoming Attorney General Kamala Harris has already said she will not defend the marriage amendment either.
In its order, the court wrote: “It is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional. As we are aware of no controlling state precedent on this precise question, we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide the certified question below.”
The case reached the 9th Circuit after U.S. District Judge Vaughn Walker struck down Proposition 8 in August, claiming it violates the Due Process and Equal Protection clauses of the U.S. Constitution.
An answer from the state Supreme Court is expected in a few weeks or months.
In a separate case, the 9th Circuit ruled today that a veterans memorial cross in San Diego is unconstitutional.
The Mount Soledad cross was built in 1913. The current cross, which stands 29 feet tall atop a 14-foot base, was erected in honor of veterans of both World Wars and Korea.
In 1989, the lawsuits began. In 1992, San Diego tried to protect the cross by giving the land to the nonprofit Mount Soledad Memorial Association. Fourteen years later, still mired in legal red tape, the site was named an official federal war memorial.
Kelly Shackelford, president and CEO of the Texas-based Liberty Institute — which is associated with Focus on the Family — said he is ready to defend the cross all the way to the U.S. Supreme Court.
“It’s not real surprising to me,” he said of the ruling. “They’re hostile to religious expression and want to engage in religious cleansing. The big question now is, will the Supreme Court take the case?
“We’re certainly going to be doing everything we can to make sure the court takes the case.”
FOR MORE INFORMATION
Read the Prop. 8 decision.