California Supreme Court Creates Legal Chaos And Disruption Over Prop. 8

By TVC Chairman Rev. Louis P. Sheldon

May 28, 2009 – Yesterday, the California Supreme Court upheld the right of citizens to amend the state Constitution to define marriage as a one-man, one-woman union. I have praised the Court for upholding Proposition 8. However, the Court also ruled that the 18,000 gay marriages already performed in the state are legal. For this, the Court deserves condemnation.

The Court created this problem in the first place by ruling in 2008 that Proposition 22, passed in 2000 was unconstitutional. Prop. 22 was passed by 61.4% of the voters. It was a Defense of Marriage Act that defined marriage in statute as a union of one man and one woman.After the Court overturned this Act, pro-family forces in California organized a massive campaign to amend the state Constitution to protect marriage from being redefined by unelected judges and radical gay activists. We realized that a statute wasn’t enough to protect marriage. Only a constitutional amendment could save marriage.

In November, 2008 voters passed Prop. 8, which was immediately challenged by gay activist groups. Gay lawyers came up with numerous bogus arguments claiming that Prop. 8 was unconstitutional. Most of these arguments were rejected by the Court.

The California Supreme Court finally did the right thing and ruled in favor of California citizens having the right to amend the Constitution, but they have created legal chaos and social disruption by permitting 18,000 gay couples to stay “legally” married. These couples will cause untold trouble for other states as they challenge bans on gay marriage.

As California Assemblyman Chuck DeVore has noted, the Court decision “is a discredit to that Court, and a disservice to the law and people it serves. Though the Court rightly upheld the validity of Proposition 8, it also laid the groundwork for further challenges to the integrity of traditional marriage in our state.”

The Court stated:

Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.

Judge Carlos Moreno, who has been mentioned as one of President Obama’s top picks for the Supreme Court, dissented in this case and voted against Proposition 8 as a legitimate constitutional amendment to the state Constitution.

According to the liberal Huffington Post, Moreno authored a California Supreme Court ruling that recognized parental relationships involving two lesbians; ruled that businesses had to recognize domestic partnerships as equal to married couples; and voted in favor of gay marriage in 2008. In his lesbian parent ruling, Moreno stated: “We perceive no reason why both parents of a child cannot be women.” Moreno ruled that the child conceived through artificial insemination is the legal child of the mother’s lesbian partner because these lesbians raised the child before breaking up.

In his dissent on Prop. 8, Moreno wrote:

I realize, of course, that the right of gays and lesbians to marry in this state has only lately been recognized. But that belated recognition does not make the protection of those rights less important. Rather, that the right has only recently been acknowledged reflects an age-old prejudice (Marriage Cases, supra, 43 Cal.4th at pp. 821-822, 846, 853) that makes the safeguarding of that right by the judiciary all the more critical.

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Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification. The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution.

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In my view, the aim of Proposition 8 and all similar initiative measures that seek to alter the California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification, violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning. Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons. I would therefore hold that Proposition 8 is not a lawful amendment of the California Constitution.

This is the view of a man who was one of President Obama’s top choices for a place on the U.S. Supreme Court! We expect Judge Moreno to cause more legal mischief in California until he is tapped by Obama for the High Court.

In many ways, the Prop. 8 ruling is a pyrrhic victory. It protects traditional marriage, while leaving an army of gay couples to subvert the system in California and other states through legal challenges to bans on gay marriage. In effect, the Court has legalized what amounts to a Fifth Column in California for the ultimate destruction of traditional marriage.

Another Lawsuit Against Proposition 8

The will of the people is once again under attack by lawyers who refuse to let the citizens of California protect marriage. Two lawyers – Ted Olson, President Bush’s Solicitor General (and considered conservative) and David Boies (Al Gore’s lawyer during the contested 2000 presidential race) have filed a lawsuit in federal court to have the marriage amendment declared unconstitutional.

Olson and Boies are claiming that the denial of marriage between gay couple is a violation of the equal protection clause of the 14th Amendment to the Constitution! They demand an injunction against Prop. 8 until their federal lawsuit is resolved.

The litigation never ends.

Additional Resource: California Supreme Court Ruling Upholding Amendment 8.

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