The Roe v. Wade of marriage

The decision in California’s Prop 8 trial could impact marriage nationwide . . .

It could turn out to be the Roe v Wade of marriage.

Perry v Schwarzenegger opened in a federal district court in San Francisco on Jan. 11, with expectations that the case will eventually reach the U.S. Supreme Court.

If it does, the high court could decide on the constitutionality nationwide of same-sex “marriage.”

Constitutionality

California’s Supreme Court ruled in May 2008 that a ban on same-sex “marriage” violated the state’s constitution. Californians responded by getting Prop. 8 on the ballot. It passed in November 2008, and the state Supreme Court upheld it.

Meanwhile, the American Foundation for Equal Rights filed suit on behalf of two same-sex couples in the U.S. District Court for the Northern District of California to challenge Prop. 8’s validity.

State attorney general Jerry Brown declined to defend the law, saying he agreed with the plaintiffs. So private legal groups have stepped in to defend the amendment, including the Alliance Defense Fund.

The plaintiffs were represented by Theodore Olson and David Boies, who argued their case for same-sex “marriage” largely on civil rights grounds. They tried to demonstrate that Prop. 8 passed on the basis of anti-homosexual bias.

“The arguments being made by the pro-same-sex-marriage side are extreme interpretations of the Constitution that should be rejected by the court,” said Jordan Lorence, senior counsel for Alliance Defense Fund, who was part of the legal team defending Prop. 8 in court. “For example, that there is a constitutional right for an individual to force the government to redefine marriage.” The Supreme Court already rejected that approach, he said, when polygamists tried to do just that in the 1880s.

“Prop. 8 was a reasonable decision by the voters,” Lorence explained. “If it’s struck down, it will give a legal basis to challenge the decision in the 30 other states where voters have passed measures defining marriage as a union of a man and a woman,” as well as the federal Defense of Marriage Act, which defines marriage as the union of one man and one woman for the purposes of federal law and provides that no state shall be required to give effect to a law of any other state with respect to a same-sex “marriage.”

Religious liberty

In the estimation of Alan E. Sears, president, CEO and general counsel of the Alliance Defense Fund, the challenge to Prop. 8 raises important questions, such as whether citizens have a right to govern themselves.

“Does a society have the ability to define its own order?” he asked. “The family is the first institution. It precedes all other forms of government.”

Sears, a member of Legatus’ Phoenix Chapter, is also concerned about religious and civil liberties. If same-sex “marriage” is legalized, will others have the right to conduct their affairs according to the dictates of their conscience? Elane Photography, for example, is one of the Alliance Defense Fund’s clients. Its owner, Elaine Huguenin, was ordered by New Mexico’s human rights commission to pay damages to a woman who had asked her to photograph a same-sex commitment ceremony. Huguenin refused because of her religious convictions.

“Adopting same-sex ‘marriage’ would make it discriminatory to even advocate that marriage between a man and a woman has some higher value to society,” said Bill May, chair of a lay Catholic coalition supporting Prop. 8.

The three-week trial was presided over by U.S. District Court Judge Vaughn Walker.

Observers were cautiously hopeful of the outcome.

“The record is being made,” said proponent Charles LiMandri, a San Diego attorney who had been active in the Prop. 8 campaign. He was referring to the testimony and data that will be examined in the almost-certain event that a higher court will take an appeal from the losing side in this trial.

“We want to get a good testimony and good exhibits out there, so they’ll say this proves that voters had the right to decide the issue and it’s not based on any animus against gays,” said LiMandri, a member of Legatus’ San Diego Chapter.

There are “tons of sociological data supporting the fact that marriage is good for those involved in it” — and for any children who are produced by it. “No society has survived that has adopted another model,” LiMandri said.

John Burger is a freelance writer and the National Catholic Register’s news editor.