QUEERLY BELOVED

Private lawyers to defend California constitution

Federal judge's ruling comes after attorney general abandons fight

Posted: July 03, 2009
12:10 am Eastern
By Bob Unruh
© 2009 WorldNetDaily

Private organizations have been given permission by a federal judge in California to defend the state's voter-approved and court-endorsed Proposition 8, which embeds in the state constitution a definition of marriage limited to one man and one woman.

The ruling comes from U.S. District Chief Judge Vaughn R. Walker in the Northern District for California, who pointedly observed in his decision that "although the responsibilities of the Attorney General of California contemplate that he shall enforce the state's laws in according with the constitutional limitations," he will not be doing so.

Gov. Arnold Schwarzenegger earlier said the state would not defend the constitutionality of Proposition 8 – which technically is part of the state constitution – against a federal lawsuit brought by homosexuals who want a state-issued marriage license.

Voters first approved the definition as a state law in 2000, then again in 2008 as an amendment to the state constitution. Later, the state Supreme Court, reversing its own ruling from only months earlier, affirmed 6-1 that the provision is constitutional.

Homosexual activists then took their complaints to federal court.

Now, according to the Alliance Defense Fund, lawyers representing ProtectMarriage.com, the group that sponsored the amendment campaign, will defend it again.

Alliance Defense Fund attorneys are co-counsel in the case along with ADF-allied attorney Andrew Pugno and lead counsel Charles J. Cooper.

"In America, we respect the results of fair elections. This latest lawsuit is yet another attempt by those who want to redefine marriage to achieve what they have not been able to obtain," said ADF Senior Legal Counsel Brian Raum. "We look forward to vigorously defending the definition of marriage that has existed since the founding of this state, that has been affirmed by the people, and that has been upheld by the courts."

Added Pugno: "This ruling designating us to defend Proposition 8 reflects the unfortunate fact that, if left up to state officials, the will of the people would not be defended at all."

A coalition assembled by a Hollywood-area public relations firm that frequently represents celebrities and their causes is backing the lawsuit, Perry v. Schwarzenegger, which attorneys for two men and two women in same-sex relationships filed with the U.S. District Court for the Northern District of California May 22.

The judge noted among the issues that may need to be addressed are the history of "discrimination" against homosexuals, whether "sexual orientation can be changed, and if so, whether gays and lesbians should be encouraged to change it," and the history of marriage.

When the state Supreme Court affirmed the definition of marriage as being between one man and one woman, U.S. House Speaker Nancy Pelosi, a staunch Democratic defender of homosexual rights, expressed her "deep" disappointment.

"I have long fought for equality for all of California's families and will strongly support efforts to restore marriage equality in California, so it can join the ranks of states such as Iowa and Vermont," she said in a statement.

However, traditional family supporters said they weren't giving up, either.

Charles LiMandri, the Thomas More Law Center's West Coast director, acted as general counsel to the National Organization of Marriage, which worked on the California ballot initiative to include the marriage definition in the constitution.

He said while the state court now "has not only vindicated the will of the voters" and helped preserve a bedrock institution of civilization, if there is further activism towards homosexual "marriage," his organization will be there to "vigorously oppose those efforts."

The court ruled: "We conclude that Proposition 8 constitutes a permissible constitutional amendment (rather than an impermissible constitutional revision), does not violate the separation of powers doctrine, and is not invalid under the 'inalienable rights' theory proffered by the attorney general.

"We further conclude that Proposition 8 does not apply retroactively and therefore that the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid. Having determined that none of the constitutional challenges to the adoption of Proposition 8 have merit, we observe that if there is to be a change to the state constitutional rule embodied in that measure, it must 'find its expression at the ballot box.'"


Seven justices in Supreme Court courtroom in Sacramento, from left to right: Associate Justice Carlos R. Moreno, Associate Justice Joyce L. Kennard, Associate Justice Kathryn Mickle Werdegar, Chief Justice Ronald M. George, Associate Justice Ming W. Chin, Associate Justice Marvin R. Baxter and Associate Justice Carol A. Corrigan

The amendment gathered the support of nearly 53 percent of California voters. It had been proposed even before a state law enacted by a voter initiative in 2000 was thrown out by the state Supreme Court in May 2008.

Homosexual activists sued in state court following the 2008 election, contending the amendment was a constitutional "revision" rather than an "amendment." Amendments can be put on the ballot by petition; revisions must earn the approval first of the state legislature, which is dominated by pro-homosexual Democrats.

Before California's court decision, only Massachusetts had recognized same-sex "marriages." In Massachusetts, a court opinion was issued, and state officials decided simply to implement their own changes in the legal code without having them adopted by the legislature as the state constitution demands.

Iowa also has imposed same-sex "marriage" in a similar fashion, even though the legislature never has changed the law to allow it. Other states where it is recognized include Connecticut, Vermont and Maine. In several states, voters already have begun ballot box plans to reverse the decisions.

When California's 2008 Supreme Court ruling was released, Justice Marvin Baxter filed a dissent that warned of utter chaos in the institution of marriage unless judicial and executive activism is reined in.

"The bans on incestuous and polygamous marriages are ancient and deeprooted, and, as the majority suggests, they are supported by strong considerations of social policy," he wrote. "Our society abhors such relationships, and the notion that our laws could not forever prohibit them seems preposterous. Yet here, the majority overturns, in abrupt fashion, an initiative statute confirming the equally deeprooted assumption that marriage is a union of partners of the opposite sex. The majority does so by relying on its own assessment of contemporary community values, and by inserting in our Constitution an expanded definition of the right to marry that contravenes express statutory law.

"Who can say that, in 10, 15 or 20 years, an activist court might not rely on the majority's analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?" Baxter wrote at the time.

The federal lawsuit came after the state court's second opinion on the issue.

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