Supreme Court Must Hear Proposition 8 Case

By Duncan, William C. | The Washington Times (Washington, DC), November 30, 2012 | Go to article overview
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Supreme Court Must Hear Proposition 8 Case


Duncan, William C., The Washington Times (Washington, DC)


Byline: William C. Duncan, SPECIAL TO THE WASHINGTON TIMES

If the Supreme Court fails to hear Hollingsworth v. Perry, also known as the Proposition 8 case, it will be approving injustice.In 2008, the California Supreme Court said the state's constitution required marriage to be redefined to include homosexual couples. Later that year, the people of California pushed back, adding an amendment, Proposition 8, to the California Constitution, restoring the definition of marriage as the union of a man and a woman. In 2010, a federal trial court in San Francisco ruled that this definition violated the U.S. Constitution. He also concluded Proposition 8 was motivated by religious sentiment - essentially bigotry. In 2012, two of three judges from the U.S. Court of Appeals for the 9th Circuit ruled Proposition 8 was unconstitutional because, since it reversed a court decision granting a new right, it must have been motivated by animus. Later that year, a majority of a larger panel of judges on that court declined to overturn this ruling.Thus, the right of the people of California to decide on this important issue was overturned by the state's judiciary. Some additional detail on these developments adds helpful perspective.For instance, that Proposition 8 resulted in taking away a court-created entitlement to marriage licenses is not the result of decisions of the people of California, but of the California Supreme Court. The court could easily have delayed the effective date of its decision until voters had weighed in on that decision through Proposition 8. The problem with Proposition 8 identified by the 9th Circuit as uniquely unconstitutional had nothing to do with the measure itself.It's also worth noting that today, the state of California offers all of the benefits of marriage to homosexual couples. It did so before Proposition 8, and the amendment has not altered that aspect of state law in any way.Less well-known is that a large body of legal decisions, including very recent precedent in the European Court of Human Rights, has rejected the idea that constitutional or human rights norms require marriage to be redefined. The only other federal appeals court to address the validity of a state marriage amendment (the 8th Circuit ruling on Nebraska's amendment) found no constitutional authority for a mandate to redefine marriage.Also at stake is the issue of states' rights. For the Supreme Court to refuse to take this case would turn a state issue into a federal one and invite federal court oversight into the question of marriage. The 9th Circuit's ruling is that the U.S. Constitution mandates homosexual marriage in California. If the court lets the Proposition 8 decision stand, redefinition advocates will see the result as an invitation to challenge the laws of Oregon, Arizona and Idaho.

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