Monday Minute : Unusual Marriage Appeal Heard Today

Thoughts from our Executive Director


In August of this year, a judge in California ruled that the California Constitution violated the U.S. Constitution by defining marriage as a relationship between one-man and one-woman. Today that decision is being appealed before the ninth circuit court of appeals.

This case is unusual in several respects. In addition to hearing arguments about a state’s ability to define marriage, the court will decide whether those who disagree with the judge’s decision even have standing to appeal it.

For political reasons, neither California Gov. Arnold Schwarzenegger nor Attorney General Jerry Brown was willing to defend their state’s right of self-government by appealing the decision. I cannot help but wonder what the point of having a state attorney general is if he is unwilling to defend the state’s Constitution.

As a result, attorneys from the Alliance Defense Fund, ProtectMarriage.com, and Imperial County are left to defend the state’s Constitution in court. Because they were not parties to the original suit, the court must decide if the appeal will even be allowed.

Assuming it is, there are real questions about the objectivity of the judges that will be hearing this case. Several pro-marriage advocates have called for Judge Stephen Reinhardt to recuse himself.

Judge Reinhardt has already demonstrated strong sympathies for the gay rights agenda. He ruled that the Defense of Marriage Act (DOMA) was unconstitutional as applied to federal employees. In that decision, he quoted favorably from the California Supreme Court’s 2008 decision striking down California’s predecessor to Prop 8. He has also ruled that student’s must give up free speech rights when it would offend gays; that employers can prohibit employee speech that disapproves of homosexual behavior; and that parents have no constitutional rights to protect their elementary-age children from school-initiated discussions on sexuality and gay marriage.

The most concerning aspect regarding Judge Reinhardt’s objectivity is that his wife—a longtime head of the ACLU of Southern California—is personally involved in the case he is set to hear today. Not only was she a contributor to the campaign to prevent the passage of Prop 8, but she has assisted the lawyers who want to overturn it. Now those lawyers will be before the husband of a woman who helped them build their case. That should not be.

This case is not just about marriage, it is about the American system of government. A majority of voters in California amended their state Constitution to define marriage in the way they preferred. A single judge stepped in and said that the U.S. Constitution prohibits a state from defining marriage as a relationship between one-man and one-woman. He substituted his views on marriage for that of 7 million Californians.

If California cannot define marriage as it seea fit, neither can any other state. This case will ultimately decide whether the power is vested in the people, or in the infinite wisdom of lawyers in black robes; whether we are a republic or an oligarchy.