If this post were part of a court decision, it would be a concurrence in judgment; I agree with Dan McLaughlin's main point about the 9th Circuit panel's Perry ruling striking down California's Proposition 8 [emphasis from original]:
There are arguments for and against same-sex marriage as a policy matter, but the argument for declaring that the Constitution mandates that only one set of those arguments be considered “rational” is itself irrational and intellectually indefensible. This is so not only because it begs the question by redefining the language and because it ignores basic biological reality, but most of all because the argument for striking down Proposition 8 treats history, culture, tradition and social convention inconsistently. It should not be taken seriously as constitutional law.
However, I think he misses the two main points that allowed the 9th Circuit panel to rule as it did, while bringing up another item that I believe is secondary at best. I covered it extensively last week, which I believe should be read first to understand where I'm coming from. I will apply the arguments I brought up from there.
The extreme activist Judge Stephen Reinhardt bases his ruling entirely from this perspective [emphasis mine]:
Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right -- the right to obtain and use the designation of 'marriage' to describe their relationships. Nothing more, nothing less. Proposition 8 therefore could not have been enacted to advance California's interests in childrearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples.
The highlighted portion is the crux of both the District and Circuit rulings; by law, same-sex "marriage" was already legal in California. It is one of the things missing from Dan's analysis. As I mentioned in my other post, the "right" to same-sex "marriage" was created from nothing by a narrow majority (4 - 3) of the California Supreme Court in their 2008 In re Marriage Cases ruling, which struck down Proposition 22, a voter initiative passed in 2000 that was the statutory equivalent of Prop. 8 (which was a voter initiative to amend the California Constitution). When adding the judicial history of this case, it shows that the following statement from Dan is in error [emphasis from original]:
More specifically, in the California context, the court found that the federal constitution gives federal judges the right to dictate the language itself, holding that California’s voters were not even permitted to reserve the term marriage to opposite-sex marriage while providing effectively all the practical state-law benefits of marriage to same-sex couples through “domestic partnership.”
It was California state judges who the California and U.S. Constitutions said had the power to dictate the language of the law; all the federal judges did was uphold the law as it existed prior to Prop. 8 being passed. It's a key error by Dan in assigning sole blame to the federal courts. The state court was very much complicit with the unconstitutional creation of a brand new right.
As I mentioned above, Dan is absolutely correct when he says the courts have treated history, culture, and tradition inconsistently. Unfortunately, the courts also treat the Constitution inconsistently, especially when it comes to the Free Exercise clause. It is a fact, one completely ignored by the majority of the California Supreme Court in their case and with the federal judges involved in Perry, that every person who has a religious objection to same-sex "marriage" has every right to do so under the law. This is a given; and because it is so, there is a legitimate state interest for protecting this right. It is why I said in my previous post that the California Supreme Court should have used the "rational basis" test to uphold Prop. 22 in the first place; because the majority used the "strict scrutiny" test, the court implied same-sex "marriage" was somehow already a "right" under the Constitution, even though there was absolutely nothing in the law supporting this notion. And once the right was created officially by the California Supreme Court, the federal courts decided to use the "rational basis" test and relying on the unrelated Romer precedent to show there was no legitimate state interest in overturning state law, although they should have used the "strict scrutiny" test to have plaintiffs show how the law was narrowly tailored to avoid violations of the Free Exercise Clause. This was brought home to me by the Obama regime's handling of the contraception/abortifacient rule they've enacted. If the Supreme Court upholds the panel ruling, thus negating the Free Exercise Clause altogether, I have no doubt there will be challenges by gay activists against religious institutions to demand these organizations "marry" same-sex couples or face charges of discrimination; the activists will charge that it is the state who determines who is to be called married, not the religious institutions. It would also open the door for those who support polygamy, or potentially worse. It's possible such challenges will be laughed out of court, but as we've seen, it only takes one judge to get the ball rolling. While this may not be the case for a relative few gay activists, most are progressives and would love to see nothing more than an elimination of the religious rights guaranteed by the Free Exercise Clause. This is graphically displayed in all of these rulings, including from Reinhardt in the most recent ruling [emphasis mine]:
Nor did Proposition 8 have any effect on religious freedom or on parents' rights to control their children's education; it could not have been enacted to safeguard these liberties.
That statement alone should be enough to overturn it completely. Justice Scalia warned of the slippery slope in his dissent in Lawrence. Considering Lawrence is being used as one of the precedents by same-sex "marriage" supporters, there is every reason to believe the Supreme Court upholding the Perry ruling would be used to expand the demands of gay activists.
And yet, I didn't see Dan bring this up at all even though it is the paramount argument. He makes a strong case about how the courts are completely ignoring tradition and culture, but the argument that must win out is the legal one. Dan does note that many of these traditions are things that should be protected by the 9th Amendment; however, the Supreme Court decided it was relevant as part of the Roe v. Wade ruling, which lessens the impact the 9th Amendment has regarding traditions. With the Obama regime's recent Obamacare actions, the legal argument to protect the Free Exercise Clause is the most pertinent argument to use.
Dan also relies on the biological aspects regarding children, which echos much of the dissent in the 9th Circuit panel ruling. I believe this is at most a secondary issue, providing a very weak primary argument for upholding traditional marriage. At best, this argument only needs to be used when it comes to adoption agencies attached to religious institutions, like Catholic Charities. They have every right to not provide children to couples the institution doesn't see as married (this would include unmarried heterosexual couples, along with same-sex couples who are "married" or not). Heterosexual couples who are beyond childbearing years can still be married by religious institutions even though there isn't a chance of a conception taking place. These couples will still be considered married despite the lack of children produced biologically from the union, which is exactly the same as with same-sex couples. So I don't see this argument has as much standing as many have made it out to be. But, as I mentioned just above, it would matter when it comes to adoptions through an agency owned by a religious institution.
From where Dan begins a subsection called "Here, Sir, The People Rule", there is nothing to dispute. It's a strong case for how the Constitution, the people, and traditions allow for the people of the United States to be as free as we are, and shows how public officials at all levels of government, including in the courts, keep trying to mess that up. But I believe Dan's case would be stronger if it mentioned how vital the Free Exercise Clause is for the discussion. Same-sex marriage can become a reality provided there is a recognition of the fundamental rights guaranteed in the First Amendment. There's a reason the Bill of Rights contains the Free Exercise Clause among the first rights of all the rights listed that are guaranteed. It's the argument that can defeat Perry, and as far as I'm concerned, the argument that would strike down Obamacare in its entirety.
Cross-posted at Scipio the Metalcon.