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Saturday, June 29, 2013

2 lies behind the Prop 8 challenge

Since I posted this, the Supreme Court ruled that the defenders of Proposition 8 had no standing to appeal the ruling that the proposition was unconstitutional. The result is that Prop 8 is struck down, and same-sex marriage is legal in California, as of 7:30 am today.
prop 8 poster
Having lived in California during the passage of Proposition 8, and now in Washington DC during the amendment’s legal challenge, I have realized that most people—even most Christians—don’t understand what was at stake with this lawsuit. Many people simply don’t grasp the lies behind the challenge to Proposition 8.
The first lie: the challenge was about gay marriage. The truth is that it is about a Christian’s right to vote.
The second lie: Proposition 8 took away a right to gay marriage. The truth is, that right never (legally) existed in California.  
In 2000, California voters approved a law that defined marriage as between a man and a woman, while granting the state the ability to give all the benefits of marriage to couples in a same-sex domestic partnership. This was the everything but the word “marriage” approach to same-sex unions. When those partnerships were being debated in the legislature, even homosexual activists claimed that they did not want the word marriage. It was a religious term, they said, and one with which they wanted nothing to do.
But in 2004, the mayor of San Francisco directed his county clerk to begin issuing marriage licenses to same sex couples. This office is non-elected, and the clerk complied with the mayor’s request, and began allowing homosexuals to marry. This lasted for five months, before the California Supreme Court stopped the process, and ruled that the previous licenses were invalid. The message to Californians was clear: government officials were going to push through same sex marriage unless we availed ourselves of the legal process to pass a constitutional amendment to stop it.
Gavin NewsomThen in 2008, ambiguity was cast aside when the State Supreme Court ruled that the 2000 law was unconstitutional, and that homosexuals had the right to same-sex marriages. This was the result of a lawsuit brought by those challenging the court’s earlier finding that what Newsome did was illegal. In other words, the County Clerk’s decision to issue same-sex marriage licenses (in an act latter declared illegal) is what led to this court case.
Stop and marvel at the absurdity of the process that got to this point. An unelected official bypassed state law to follow a politically motivated order from a mayor, and that unaccountable act compelled all California counties to honor those marriages, and in turn other states (states without a legally binding definition of marriage) to accept California marriages. The national debate on marriage was being decided by the actions of a county clerk!
It was five months later that Proposition 8 passed, which amended the state constitution to specify that marriage is a union between two partners of the opposite sex. The text of the Proposition simply says this: “Only marriage between a man and a woman is valid or recognized in California.” It was that amendment that was challenged in Federal Court.
There is much about the federal trial that left Christians feeling swindled. First, the state passed on its legal obligation to defend the law. Second, the case was assigned to an openly homosexual judge. Third, that judge ruled that individual counties could not defend proposition 8. That left nobody to do the defending.
California's Supreme Court
California’s Supreme Court
One group did step up, and with funding that they raised, along with an order from the California Supreme Court, they were allowed to defend the case. It was obvious from the trial that they were taking a risky approach—essentially they refused to offer any kind of substantial defense of Prop 8. The legal threshold required of them to have a result in their favor was to show that the amendment had a rational purpose–which is a fairly low bar, legally speaking. Yet they called almost no witnesses, and barely put on a show. Instead, their strategy was simply to state the obvious: it is rational to view marriage as exclusively between a man and a woman. Clearly, that defense did not go over well with the judge.
As a side note, throughout the trial, the LA Times ran lists of people who supported the Proposition 8 effort financially. When those people owned businesses, the Times put that information on there too. Soon LGBT groups began protesting those establishments, and those protests were (you guessed it) covered by the LA Times.
But that is not really the main point. The judges’ ruling essentially leads to the first lie about Proposition 8:
Christian voting rights:
In his ruling, the judge made clear that the motives of voters were what was on trial. Why would a voter want to confine marriage to heterosexuals? There could be no rational basis, the judge wrote, or at least none that was presented at trial. Instead, he said, the only reasonable assumption is that people voted to define marriage because of their religious beliefs [which is astoundingly ironic, in light of the fact that in the early 2000’s the homosexual movement itself said that marriage was a religious term, with which they wanted no part]. The judge went on to write that because there was a large Christian turnout at the election, and that “religion lies at the heart of” opposition to gay marriage, so that “fatally undermines” the Proposition 8 cause.
With that paragraph, the judge made this case was no longer about gay marriage, but about the Christian’s ability to participate in our legal process. Christians had their votes nullified simply because they voted with Christian convictions.
It is also noteworthy that Proposition 8 passed in the same election where President Obama handily defeated John McCain; in other words, a majority of Californians voted for President Obama, while also voting in favor of Proposition 8. But the judge was only interested in the motives of those voting in faovor Proposition 8.
Taking away marriage rights:
But that is not the only lie behind proposition 8. The second is one that has been often repeated, and was in fact the logic used by the 9th Circuit Court of Appeals in upholding the trial verdict invalidating Proposition 8. They said that California was unique, because they had given homosexuals the right to marry, and Proposition 8 took that away from them. In that light, the court argued, California has to allow gay marriages. Once they started, there is no rational basis to go back (and remember, that rational has now been defined as apart from any religious influence).
But this is simply not true. California had voted two times on the issue of gay marriage, and both times the election affirmed heterosexual unions as the only legal form of marriage. Remember, it was an unelected County Clerk that started issuing the marriage licenses, and those very licenses were invalidated by the state supreme court. It was a challenge to that which opened up the six month period between the State Supreme Court’s decision and Proposition 8 where these marriage were allowed. In other words, in no way did Proposition 8 take away rights from a group. It was an illegal act that led to a legal crisis, which led to the Proposition passing.
As I said earlier, I don’t know what today holds. If Proposition 8 is upheld, or sent back to California for a new trial (for lack of standing on behalf of those that defended it), it probably only delays the inevitable. If the court upholds the findings of the trial judge, it will be a sad day—not only for the concept that governments exist to check sin, rather than to promote it. But for the simple reason that a judge said that if Christians allow their religion to influence their voting, then their votes should not count. In many ways, this is simply the latest step in taking away a Christians’ ability to participate in the public square.

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