The California same-sex “marriage” saga continues. A panel of the 9th Circuit Court of Appeals, the most overturned Circuit in the country, upheld a lower court decision that overturned Proposition 8, a voter initiative passed in 2008 that put into the California Constitution a definition of marriage so that the state only recognize marriages when they are between one man and one woman. The ruling on Perry v. Brown was split with the Carter-appointed Judge Reinhardt (the most liberal judge on the 9th) joined with the Clinton-appointed Judge Hawkins in the majority (Reinhardt wrote the opinion) while the (George W.) Bush-appointed Judge Smith concurred in part and dissented in part. The skinny on this in my view is that it is an activist decision upholding an activist decision upholding an activist decision. But it’s more than that too, something brought to the fore by the Obama regime’s war on religion, and in particular, Christianity. This is a long piece, but I believe well worth the read. Again, I should note as a disclaimer that I am not a lawyer or legal scholar; this is simply an opinion.

The ruling answered three questions. The first two were answered unanimously. The first had to do with plaintiff’s standing in the case; since the state didn’t provide counsel to defend Prop. 8, its drafters did. The question was whether or not they could; the court ruled that they could. The second had to do with whether or not the District Court ruling should be vacated since the judge in the case, the now-retired Vaughan Walker, stated after he ruled that he was gay and in a long-term relationship, indicating a conflict of interest; again, the panel ruled no recusal was necessary and Walker’s judgment would stand. The third was the main part, the constitutionality of Prop. 8 itself.

This case goes back to the 2008 California Supreme Court ruling In re Marriage Cases. In 2000, a voter initiative called Proposition 22 was passed that put the one man-one woman definition of marriage in a statute in the California law code. The CSC overturned Prop. 22 and immediately created a brand new right that never existed in federal or California law, the right to same-sex marriage. As same-sex couples started getting “married”, Prop. 8 was proposed for the ballot and an injunction put in place to stop further same-sex “marriages”. Prop. 8 passed in November, 2008; immediately afterward, suits were filed to get it overturned. The California courts upheld it, and it moved on to the federal courts.

Judge Walker’s ruling was mostly a long-winded non sequiter (he included pages and pages of items he called “Findings of Facts”). To make a long story short, Walker determined that since California law granted a right to same-sex marriage, via the California Supreme Court In re Marriage Cases ruling that overturned Prop. 22, Prop. 8 was unconstitutional on Due Process and Equal Protection grounds, that it codified discrimination of same-sex couples and failed to provide marriages on an equal basis.

The panel majority pretty much affirmed Walker’s ruling on what appears to be very narrow grounds, in that it covers California and not states that have passed their own legal definitions of marriage. They relied on the Romer case, which overturned a Colorado amendment that attempted to throw out laws the people of that state determined favored homosexuals over others. Judge Smith’s dissent disagrees Romer carries any weight in this case; he then goes through a weak defense of Prop. 8 being constitutional.

Eugene Volokh provides an in-depth analysis of the 9th Circuit ruling. It mostly concerns how it affects the various marriage and civil union laws passed in the various states; in effect, any state that has separate laws for marriage and civil unions may find that those laws are discriminatory, requiring states to recognize same-sex “marriages”. In short, the law will be used against the people who want to only recognize traditional marriages but feel an obligation to provide some privileges to same-sex couples. Volokh’s last paragraph is significant as he discusses the tests used by the courts for their rulings.

The Walker and 9th Circuit rulings used the “rational basis” test to determine Prop. 8 was unconstitutional. In this test, they determined there was no plausible state interest in keeping same-sex couples from getting married, especially since it had been a right created for them before by the state court. However, the California Supreme Court used the “strict scrutiny” test in In re Marriage Cases, which required the state to produce factual evidence for claims of a legitimate government interest. According to the CSC, no evidence was provided; but when thinking about it, the CSC required proof of a negative, where evidence couldn’t be presented until Prop. 22 was overturned. If anything, the CSC should have used the “rational basis” test while the federal rulings should have used the “strict scrutiny” tests. I say this following the Obama regime’s recent HHS ruling requiring people to put aside their religious beliefs (not just the Catholic Church or its members, but all individuals, which is the real issue) when paying for items in health insurance policies under Obamacare, specifically for contraception and abortion-inducing drugs.

Except under extremely limited circumstances, the Free Exercise Clause says the state cannot pass laws that violate an individual’s religious beliefs. According to the CSC ruling, there is a distinction between religious and civil marriages. However, this is ridiculous since a traditional married couple is viewed as married regardless of what the beliefs of the two people are. On the other hand, same-sex couples would never be considered married by those who believe homosexual behavior is sinful. So the idea that there are two types of marriages has no merit.

The CSC also said this:

Finally, affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious…organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.

As it turns out, that isn’t true. Following the ruling, some county clerk employees refused to provide same-sex couples with marriage licenses; many were threatened with termination before the injunction to stop new same-sex “marriages” went through. A recent New York law put in anti-discrimination language in its same-sex “marriage” law to prevent retaliation against county clerk employees there who had the same beliefs, but there is still an outcry from the gay lobby to disallow people with these beliefs from being employed in these capacities. Then there is the case in Massachusetts where the Catholic Church got out of the adoption business there in order to keep from being sued by the state for discrimination, and having to pay enormous court fees to defend itself; Catholic Charities had decided it wouldn’t place children with same-sex couples and Massachusetts said this was discrimination.

Since there was no prior evidence of harm, the use of the “strict scrutiny” test by the CSC was without merit since there was a legitimate state interest under the “rational basis” test to protect the people’s rights under the Free Exercise Clause.

Following the In re Marriage Cases ruling, there was plenty of evidence for the federal courts to use the “strict scrutiny” test to show a legitimate state interest to protect religious rights. Yet, as mentioned earlier, the federal courts didn’t, using the “rational basis” test instead. This allowed Judge Walker to completely ignore the Free Exercise Clause, as he did in his “Findings of Facts” No. 77 on page 101:

Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.

As with the Obama regime, Walker completely throws out the Free Exercise Clause; it isn’t for him or any other public official to decide that an individual’s religious beliefs conform to the dictates of the state. This was proven by the recent unanimous Hosanna Tabor ruling in the Supreme Court. Here, Walker perfunctorily allows those with such religious beliefs to be discriminated against, contrary to every law and constitution in the United States. And the 9th Circuit went along with it. Worse, almost no analysis from legal scholars address this at all, including Volokh. Yet it is the key to this ruling. There is evidence showing there is a compelling state interest in upholding the right to an individual’s religious beliefs. Therefore, the “strict scrutiny” test is absolutely required to decide these cases, which would compel the courts to throw out any challenges to states that only recognize traditional marriages. Conversely, if a state does recognize same-sex marriage in a statute or constitutional amendment, “strict scrutiny” applies if there aren’t provisions in place to uphold the religious rights of those who only believe in traditional marriage.

There are two other troubling aspects here. In the 2003 majority opinion written by Justice Kennedy in Lawrence v. Texas, which overturned Texas’ sodomy law, the idea that there was a “slippery slope” that recognizing a right to commit sodomy would lead to same-sex “marriage” was essentially ludicrous. Justice Scalia’s dissent in that case laughed at this notion understanding that since Griswold in 1965, the “slippery slope” did exist and was pushing ever forward. The probability that the Supreme Court will hear the Perry case bears this out. Of course, how the ruling could go is a mystery that I don’t wish to entertain here.

The other troubling aspect has to do with how gay activists have turned every discussion into an assault solely upon gay people, and we have idiot judges and Justices buying into it, along with many others. This is ridiculous on its face. In Arkansas, a recent state ballot initiative restricted adoptions to traditional married couples; yet, a judge at the lowest court overturned it because even though adoptions by unmarried heterosexual couples were affected, the law somehow only targeted same-sex couples. Both Prop. 22 and Prop. 8 were passed not only to define marriage in the traditional sense (one man, one woman), but also did not recognize bigamy, polygamy, or same-sex “marriages”; yet, gay activists convinced the courts they were only targeted. The same goes for the Texas sodomy law overturned in Lawrence. It was a stupid law, but it didn’t target gay couples only; it just so happens a gay couple happened to be caught, although the law itself wasn’t specific regarding the sexual orientation of the couple involved in sodomy. As can be seen, gay activists have been pushing for special rights based on their sexual orientation, while completely ignoring established rights that the government is required to protect. For this reason alone, the idea that it is a violation of the Equal Protection Clause to allow a same-sex couple to get “married” falls flat on its face.

I have no doubt that as rulings like this continue, and despite the above quote I used from the In re Marriage Cases ruling, there will come a time when the courts will declare that a church or religion who denies a marriage ceremony for same-sex couples will be declared guilty of discriminating against the couple. There are too many public officials, all the way up to President Obama, who have a stake in imposing their personal beliefs over those rights they are supposed to be protecting. To them, the Constitution be damned.

Cross-posted at Scipio the Metalcon.