The United States Court of Appeals for the Ninth Circuit handed down a decision today finding unconstitutional the initiative passed by the California electorate which defined marriage as between one man and one woman. It is a uniquely poor decision.
The court does not concern itself with anything other than the right of gays in California to use the word marriage to describe their unions. As the court notes, before the initiative passed, California already allowed unions between same sex couples and granted to those couples all rights andd privileges given to an opposite sex married couple. All the initiative did was to change the name applied to the same sex unions. The essence of the court's decision comes early in the lengthy decision. First the Court notes that there has to be a legitimate reason for treating different classes of people differently in order for the law to be constitutional and goes on to say, "Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples."
Since that is not a "legitimate" reason, the law is unconstitutional.
This is the kind of silly decision which often comes out of courts when they try to legislate from the bench. Everyone agrees that Proposition 8 did nothing but limit the use of the word marriage as a union between a man and a woman. All rights and privileges in California that apply to married couples remained applicable to gay couples. It was just about a word! The court, however, was able to glean from the one line proposition which the voters passed an intent to lessen the status and dignity of homosexuals. Really? How so? We have plenty of words used by government which indicate differences without any real difference in rights. Here's a simple example: how about "men" and "women"? We know that there are physical differences between men and women, and the government calls them by different names. Nevertheless, all can vote, all must pay taxes, all get police protection, and all get the same rights. It is legitimate to call them by different names, however, because they have different sex organs. Well, guess what? Same sex couples have a different mix of sex organs than opposite sex couples do. If calling individuals with different sex organs by different names is okay and passes constitutional muster, then calling pairs of the folks with different sex organs must likewise be fine.
I realize that the above example is simplistic, but it is truly all that is needed to show the folly of the court. I know that the Ninth Circuit judges want to show that they are simpathetic to the cause of gay marriage, but the people of California voted and their will must be respected unless they are violating the constitution. Clearly, changing the name of a gay union from marriage to domestic partnership or some other such name does not deprive anyone of constitutional rights. Indeed, the court cannot possibly decide the real purpose of a ballot proposition except by guessing or inserting the court's own biases. Simply put, the court was way off base here.
Hopefully, the Supreme Court will accept an appeal from this decision and return the courts to a respect for actions taken by the people.
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