February 7, 2012 Print

9th Circuit: California Marriage Amendment Unconstitutional

by Karla Dial

In a split decision, a three-judge panel of the 9th U.S. Circuit Court of Appeals today ruled the California amendment defining marriage as the union of one man and one woman unconstitutional.

ProtectMarriage.com, the coalition of groups defending the amendment, known as Prop. 8, in court, said they will decide next week whether to file their appeal with the full retinue of judges at the 9th Circuit or the U.S. Supreme Court immediately. . No same-sex marriages will take place in California until all appeals have been exhausted.

The decision “is completely out of step with every other federal appellate and Supreme Court decision in American history on the subject of marriage,” Legal Counsel Andy Pugno said.

The judges did not address the constitutionality of same-sex marriage per se, but rather the circumstances under which the amendment defining it was passed in California: In 2008, the state Supreme Court unilaterally declared gay marriage legal, despite the fact that a ballot measure banning it had been passed in 2000. The Prop. 8 petition drive was nearly complete when the state Supreme Court made its decision — ignoring requests from family advocates to wait until the people had had a chance to speak on the issue.

The majority wrote that because the state Supreme Court had granted a “right” that was later removed, Prop. 8 violates both the California and U.S. constitutions.

“We’re disappointed in today’s decision, but it was not entirely unexpected, given the record of the 9th Circuit,” said CitizenLink Judicial Issues Analyst Bruce Hausknecht, noting that the 9th is the most often-overturned federal appellate court in the nation. “Opponents of Prop. 8 insist on changing the definition of marriage for everyone, including children who deserve the opportunity to grow up in a home with their own married mother and father.

“But no judge has the right to redefine marriage. Doing so redefines parenthood, and offers yet another instance of social engineering based on the desires of adults rather than the interests of children. We’ve already seen, and continue to suffer from, the effects of divorce, unwed births and fatherlessness on children and families. This latest tinkering with marriage to remove mothers and fathers as an essential element of family poses serious ramifications for future generations.

“The long road to vindicating the right of more than 7 million California voters to establish public policy in this case continues.”

The Alliance Defense Fund agreed.

“No court should undercut the democratic process by taking the power to preserve marriage out of the hands of the people,” said ADF Senior Counsel Brian Raum. “Americans overwhelmingly reject the idea of changing the definition of marriage. Sixty-three million Americans in 31 state elections have voted on marriage, and 63 percent voted to preserve marriage as the timeless, universal, unique union between husband and wife.”

Read the 9th Circuit’s decision on Prop. 8.