The American Spectator : The Spectacle Blog : Yes, the Prop 8 Decision Could Stand

Text Size

The Spectacle Blog

Yes, the Prop 8 Decision Could Stand

By W. James Antle, III on 8.6.10 @ 2:04PM

In my column today for the main site, I make note of James Taranto's argument that the Supreme Court will uphold this week's same-sex marriage ruling:

So it all comes down to that wild and crazy Justice Kennedy, and by gosh, you just never know what he's going to do!

We disagree, and we are prepared to offer up a prediction: When the Supreme Court takes up Perry v. Schwarzenegger--perhaps under the name Brown v. Perry or Whitman v. Perry--the justices will rule 5-4, in a decision written by Justice Kennedy, that there is a constitutional right to same-sex marriage.

This accepts the conventional assumption that the court's "liberal" and "conservative" wings will split predictably, 4-4. Yet while Kennedy cannot be pigeonholed in terms of "ideology," on this specific topic, he has been consistent in taking a very broad view of the rights of homosexuals. He not only voted with the majority but wrote the majority opinions in two crucial cases: Romer v. Evans (1996) and Lawrence v. Texas (2003).

There is nothing in the logic of either Romer or Lawrence that bodes well for the widely predicted reversal of Perry. Now, the former decision dealt with a state constitutional amendment invalidating and forbidding the enactment of local gay-rights ordinances; the latter decision overturned anti-sodomy laws that banned gay sex between consenting adults. A constitutional right to same-sex marriage is a more radical proposition, and perhaps Kennedy will either refrain from going that far or find some way to uphold Walker's ruling without trying to settle the issue for the whole country. But I'm not sure that's the way to bet, and such a decision will change the politics of this issue in ways difficult for people on both sides of the debate to predict.

View all comments (16) | Leave a comment

Chuck Anziulewicz| 8.6.10 @ 3:22PM

"A constitutional right to same-sex marriage is a more radical proposition."

Perhaps, but is there a constitutional right to opposite-sex marriage? Not as far as I can tell. The word "marriage" does not occur in the Constitution. And yet, in Loving vs. Virginia, the court wrote, "Marriage is one of the basic civil rights of man."

While it's true that the Constitution doesn't define "marriage," the federal government has complicated the issue by taking a vested interest in married couples for the purposes of tax law and Social Security (among the 1,138 legal benefits, protections, and responsibilities that are automatically bestowed on couples once they marry). Therefore this is not an issue that can be left up to the states to decide individually, since it wouldn't do for a Gay couple that is legally married in Iowa, for instance, to become automatically UN-married once they decide to move somewhere else.

Religious beliefs are irrelevant to this debate, because (1) the United States is not theocracy, and (2) churches will continue to be free to conduct or deny ceremonies to whomever they want.

Procreation and parenting are irrelevant, since (1) couples do not have to marry to have children, and (2) the ability or even desire to have children is not a prerequisite for getting a marriage license.

This is simply a matter of equal treatment under the law.

The quest for marriage equality by Gay couples has absolutely nothing to do with Straight (i.e. heterosexual) couples. Nothing is changing for them. Nothing is happening to “traditional marriage.” Most people are Straight, and they will continue to date, get engaged, marry and build lives and families together as they always have. None of that will change by allowing Gay couples to do the same. This is really not any sort of a “sea change” for marriage, since the only difference between Gay and Straight couples is the gender of the two persons in the relationship.

Bruce Berger| 8.6.10 @ 6:16PM

Chuck,
I agree with you that marriage is not a right. For legal purposes, it is an (ongoing) act that has been encouraged (I think, but who would know given how complex the tax code is) by our lawmakers for whatever reasons, though I suspect those reasons include historical tradition, the assumption that hetero marriages lead to more stable families and hence communities, etc.

Therefore, this is not an equal protection issue. While on a different plane of importance think of what our lawmakers do to encourage homeownership. They incentivize homeownership rather than renting through various means. Renters do not have equal protection claims because lawmakers have the authority to encourage some living arrangements over others.

Again, marriage is clearly a much bigger issue than how rent/own issue, but it really is the same principle in the end.

That is why this needs to have a legislative solution. I think gays have made excellent arguments in favor of full recognition of marriage contracts on par with those of heterosexual couples. The public is slowly, but surely, coming to the side of same-sex marriage recognition. My guess is that within a decade most states would have same-sex marriage recognition. I think a legislative approach would be much more durable in the long run than a judicial one.

Jim Hlavac| 8.6.10 @ 6:39PM

A very good analysis here, I like it.

Though one part always missing in the debate is a 1st Amendment claim for gay marriage. If some religion wants to OK gay marriage vows, then no other religion should have the ability to trump that by getting the state to prevent the marriage, even if by just not recognizing it at all. That would be the establishment of some religions over others. Regardless of if it's a 9-1 split, it's still some over others. It's true many religions will disagree with others over the issue, but that's theological, not legal.

And that's one more argument For gay marriage.

Nick| 8.6.10 @ 7:59PM

Mr. Hlavac,

So, if some religion wants to okay human sacrifice by consenting adults, then no other religion should have the ability to trump that by getting the state to prevent these sacrifices, right?

All laws impose someone's morality on someone else. All laws state that some acts are either allowed, or they are prohibited. In other words, laws state which acts are right and wrong.

To claim that those of us who want the law based on our religious beliefs somehow creates a theocracy, is fallacious. As an American I can base my political beliefs on whatever I want.

And, I want our laws based on the teachings of Our Lord, Jesus Christ. Like it was at the founding, and for about a century afterwards.

Margie| 8.7.10 @ 3:06PM

Nick,

Excellent post, sir.

"A word fitly spoken is like apples of gold in a setting of silver." Prov. 25:11.

AKB123| 8.6.10 @ 4:13PM

I agree with W. James Antle, III and James Taranto that Justice Kennedy will likely author a decision establishing a new federal constitutional right to same-sex marriage. The effects of this decision on opposite-sex marriage are not yet known, and they are not irrelevant to this debate, because "most people are Straight".
As noted above, "couples do not have to marry to have children". Indeed, more and more heterosexual couples in the U.S. are having children without marrying. It has been noted by several observers, such as Stanley Kurtz and David Blankenhorn, that the social acceptance of opposite-sex cohabitation and unwed childbearing appears to correlate, temporally and geographically, with acceptance of same-sex marriage.
There used to be a popular prejudice that children should be born to and raised by married biological parents. Given beliefs among young people these days, this prejudice appears to be doomed.

darcy| 8.9.10 @ 7:18AM

There can be no "right" to same sex marriage and free exercise of religion simultaneously in the same country.

The God of the Bible, upon whose precepts our rights derive -- as stated in the Declaration of Independence -- must be subdued and dismissed, and so must His followers, if a new right to homosexual marriage is created out of whole cloth by our egalitarian, tolerance worshipping Leftist fellows: for the two rights are incompatible. A nation cannot tolerate the free-exercise of religion when that religion declares homosexuality a sin; and preachers will not be permitted to warn against sexual sin when the state deems there is no sexual sin by virtue of its having "normalized" homosexual marriage as equal to heterosexual marriage. But who cares about First Amendment rights anymore? Why, we have better and more fashionable rights these days, don't we? Soon we may even progress to the point where there are no restrictions whatsoever to anything. Every odd behaviour will have its own special right.

And as for property rights? My grandkids born this year already have $44,000 of their future "property" by way of taxes stolen from them by this current corrupt, despicable government. Where is their due process? their "representation"?

This is not your world to create, you arrogant nimcompoops; this is not your world to order and shape as per your latest popular whim, you pissant sophists. You think you're blazing trails toward the new progressive, postmodern utopia, but all you're doing is reverting to those primitive pagan practices from a time synchronistic with Sodom and Gomorah, and you want us to cheer you on. What utter fools you people are.

By fiat a judge imagines that he can be God. Well, he can imagine it and he can act on his vain imaginings, but he cannot change human nature and the natural revulsion that exists among the people when the natural order is turned on its head by judicial decree.

Oh, sure. The arrogant judge can make a new law and he can rest assured that the culture will degenerate that much more quickly because of it (his idea of progress); but I don't envy him when he meets his Judge.

How does that Bible verse go? "But if anyone causes one of these little ones who believe in me to sin, it would be better for him to have a large millstone hung around his neck and to be drowned in the depths of the sea."

Bo Darville| 8.6.10 @ 7:05PM

I think it's more likely that they'll ban opposite sex marriage than overturn this decision.

Bo Darville| 8.6.10 @ 7:06PM

I made no sense there, did I?

Wade Roe| 8.7.10 @ 6:12AM

Imposing gay marriage on the country on a 5-4 vote would be a truly broad stroke for the Court. Forcing social revolution throughout the country by a majority of one, with an assured dissent calling the decision illegitimate, might make Kennedy or even some of the liberal justices blanch. Kennedy has been very pro-gay, but he might perceive the danger a political backlash (and perhaps some of the liberals as well). If the vote goes gay, every social conservative in American will be out at the polls in 2012 and voting Republican. The annihilation of the Democrats in Red States at least will be something to see.

JJones29| 8.8.10 @ 7:41PM

This case will never get decided by the Supreme Court before 2012. You still have the 9th Circuit, rehearing, rehearing en banc, petition for cert, argument and opinion writing to go before the decision is made. Think 2013 at the earliest.

Oldefarte| 8.7.10 @ 11:06AM

There is no RIGHT to homosexual marriage, and anyone believing same is totally ignorant of the fact that the NATURAL LAW is the basis for MAN'S LAW, and that the former outlaws any marriage not between one man and one woman!!!!

Amy| 8.7.10 @ 6:35PM

If marriage should be defined by what has existed through most of human history in most places, it's one man and many women. Further, that's the sort of marriage in the Hebrew and Christian Bibles, by and large.

And evidently people from those times thought that was what was natural for people.

Frankly, what gets me is how exceptionally poor was the evidence on the pro-Prop8 side. They only had two witnesses and just one of them testified about marriage. That witness couldn't back up his statements with evidence of any quality and in fact said things that supported the anti-Prop8 side. If the case against gays and lesbians marriage was so strong, why couldn't they bring a stronger case? And why didn't leaders like Maggie Gallagher testify? She presents herself as an expert yet she didn't allow herself to be tested under cross-examination.

And this is what will ultimately matter -- the evidence for claims about same-sex marriage being terribly damaging is just not there. All that's left is the claim that the people have the right to their beliefs and if they don't want same-sex marriage, that's their choice. But it's a well-established principle in constitutional law that majority rule does not trump minority rights.

darcy| 8.9.10 @ 2:37AM

If the decision stands, America falls.

Either our rights -- as per the Declaration of Independence -- come from our Creator, or they come from the state. Worship the creator or worship the state. It's your choice.

If there is no God, then all things are permissable, as per Dostoyevski in the Brothers Karamazov.

Read it. It will do you some good.