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  • Ninth Circuit Rules Against Marriage

    Today, in a 2–1 decision, the U.S. Court of Appeals for the Ninth Circuit ruled against Proposition 8, the California ballot measure that defined marriage in the California constitution as one man and one woman.

    The appeals court decision upholds the decision of the lower court, which struck down Prop 8 as unconstitutional. According to the court of appeals, there was no “legitimate reason” for California voters to enact Prop 8.

    In contrast to the trial court, the appeals court decision bases its decision on very narrow grounds that might not apply in other cases not involving the unique facts of Prop 8.

    The court states:

    Whether under the Constitution same-sex couples may ever be denied the right to marry…is an important and highly controversial question.… We need not and do not answer the broader question in this case, however…[, because the] unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrow grounds.

    However, the panel’s “narrow” reasoning is little more than an activist house of cards. According to the panel, because the California constitution guaranteed a right to same-sex marriage—a right that existed for less than six months as a result of another activist judicial decision that modified both how the California constitution had always been read and the application of a state law enacted through initiative—the people of California could not amend their constitution to putatively disadvantage those who would seek to avail themselves of same-sex marriage without meeting the liberal court’s heavy-handed standards for what constitutes “legitimate” reasons.

    While denying that the decision creates a one-way ratchet in which any activist opinion creating rights or privileges becomes beyond correction by the people, that is precisely what this stunning decision does.

    The ruling is lengthy and will bear additional analysis. But according to one legal scholar, “the case now has a seemingly clear path to the Supreme Court.” If the importance of the legal question wasn’t sufficient to guarantee that, consider that the decision was authored by liberal activist Judge Stephen Reinhardt, who has done much to contribute to the Ninth Circuit’s reputation for high reversal rates by the Supreme Court. Indeed, it has been frequently reported that Judge Reinhardt is so brazen about his lawless activism that he has bragged that the Supreme Court “can’t catch ‘em all”—“‘em” being his legally wayward opinions.

    As the Ninth Circuit writes, the question of how to define marriage “is currently a matter of great debate in our nation.” Unfortunately, instead of permitting that debate to occur through the political process, decisions like the one issued today remove the question from voters in favor of judicially imposed social policy.

    Posted in Featured [slideshow_deploy]

    52 Responses to Ninth Circuit Rules Against Marriage

    1. Where are we headed as a nation?

      • Isir Abelon says:

        "Where are we headed as a Nation"?…. Ricardo, if we; the American people don't see the signs, it will be to late. Stand up and fight back. SIR EDMUND BURKE QUOTED, SAID, "THE ONLY THING NEEDED FOR THE TRIUMPH OF EVIL IS FOR ALL GOOD MEN (AND WOMEN) TO DO NOTHING . They are taking a small bite at a time. They elected a President, President Obama, who do not have any experienced to be the President. Vice President Joe Biden, has quoted in 2008 Primary that OBAMA is not qualified to be President of the United States, they voted for him anyway… Soon they will owned the Supreme court, They sided with the illegals who do not have the right to be here in America because of the Latinos' votes. Sued their own Countrymen, like Arizona and Alabama. Liberal judges are all over. If we don't see all these signs we will fall in the hands of Liberals. Remember; "There are more of us , than there are of them". We stand up and take back America, send all Liberal Democrats home, and Obama. We can do that in this coming election 2012. STAND UP FOR AMERICA, BE AMERICAN. Adios.

        • Rescue America says:

          Dont forget to send all the RINOs home also. Lots of those in all houses of government at the federal, state and local levels.

      • krazykat_randi says:

        Right into the toilet.

      • Barry says:

        I suppose that depends on how much "We The People" will allow the liberals, in whatever capacity, to dictate to us how we will live. If the Constitution and America as a "shining city on a hill" is to survive, those of us who love it MUST GET OFF OUR BUTTS AND STAND OUR GROUND!!!

    2. Bobbie says:

      where government rules their conflicts of the peoples' interests paid in many ways besides the unfair amount of time and money stolen from those they don't serve fair justice to, judge in favor of their own abuse of authority with disrespect to the peoples process in voting as worthless their time and effort to the judge judging on his own behalf. Put ignorance in it's rightful place!

      In all the world's history of mankind the 21st century shows mankind to be saddly intolerant of the one word "marriage" that doesn't fit the homosexual description which has been accepted since the beginning of time. But in the 21st century mankind shows how selfishly pathetic he/she allowed him/herself to become. . .

      • Amy says:

        I'm a faithful subscriber to the Heritage Foundation but this is one issue and analysis with which I don't agree nor understand. It seems to me that the 21st century mankind has completely destroyed and disrespected marriage and its sacred nature through infidelity, a high prevalence of divorce, and other means of desecration of the institution that are for more detrimental than two men or two women that want to be together. I know a number of gay couples in the most solid, faithful, and loving relationships I have ever seen. If we are for limited government, and don't want the government telling us which light bulbs or which health services we can use, why do we want government to be able to dictate who we marry?

        • Bobbie says:

          Amy, please take no offense but what "seems" to you is really none of your business. Marriage is between God and the wed. Get the government out all together. Like I've said before, we're penalized for being married and I don't know anyone who's wedding intention was for government benefits except people desperate to fit into a definition they, unfortunate for them, don't! Sad!

        • RinPortland says:

          Because marriage is a 3-way contract… woman/man/state.

      • Clearhead says:

        Hey there "Bobbie" boy,
        Would you mind furnishing us with a translation of your comment? I tried "Babylon", but yours doesn't seem to be one of their 147 translatable languages.

    3. TJB says:

      Headed for equal rights for all individuals no matter their sexual orientation because it does not matter. What matters are our civil liberties, even the civil liberties of people you are unable to understand.

    4. Dean says:

      How can the court determine that Proposition 8 is unconstitutional when it is part of the constituition of the State of California? Where is my reasoning faulty?

      • Johnny says:

        Your reasoning is faulty when you begin to buy into the designed deception that this issue, in any way shape or form, is an issue to be dealt with at the State level. This is CLEARLY a violation of the Gay Community's Constitutional Right to "Their" pursuit of "Their" happiness, not to mention "Their" liberty, and should NOT even be an issue, but having stating the obvious, I guess we'll have to wait, yet again, for the Supreme Court to decide.

        • Mike says:

          like the founders ever contemplated that a union between two individuals commiting sodomy to be equal to a married couple.

    5. george seaver says:

      There may be a silver lining here:
      Do not pass civil union legislation, as it will be used by the courts to justify homosexual marriage under an "equal treatment" idea. For example, this applies now to New Hampshire where civil unions is being debated.

    6. Stirling says:

      The 9th circuit court is the most liberal activist court in the land, thus it's not hard to belive that they ruled in this way. There has been talk of merging it with annother circuit out west to change it's makup to be less liberal activist, which would help.

      Since the fabric of our country is the union of mariage it's not hard to see why a progressive agenda of central planning government sees mariage as a threat.. Mariage provides more financial freedom which reduces dependency on a government. Less dependency = less need for government.

    7. Janice says:

      No matter what the courts rule, marriage is still between a man and woman with the result of a family when of childbearing age. Two homosexuals cannot have children. It should be ruled as some other form of arrangement, such as room mates. There could be legal agreements in a room mate situation if the two decide to remain together for life like a contract. But, traditional marriage is extremely vital to the world to remain as is….between man and woman, with children. Judges are not always the best or brightest people in the world.

      • Clare says:

        So because homosexuals cannot have children marriage is not an option? So I guess all of the heterosexual couples that are infertile should get a divorce immediately! And all of those children trying to get adopted should give up because they are just going to be in the system forever. Clearly you live under a rock and have never heard of Insemination or invetro.

    8. Richard Wells says:

      This is a real slippery slope situation. If a state can NOT prohibit gay marriage, then can they prohibit underage marriage, polygamy, necrophilia???

    9. stylengrace says:

      We do ourselves and our political system a severe diservice when we lump emotional issue with legislative process. " …instead of permitting that debate to occur through the political process, decisions like the one issued today remove the question from voters in favor of judicially imposed social policy.." The core issue is not the morality of gay marriage – government does not dictate morality, certainly not from the judicial bench – the issue is the rights of marriage not being available to same sex partners. I find it stupifying that here is one of the most creative minorities in our population and they can't come up with their own version of parnership that can be legislated to include the same rights that traditional marrige offers. What is it about forcing the majority to change for a minority? Just create a different category and legislate a certificate that allows tax credit, inheritence, next of kin..etc. to this new group of individuals. The attorneys should be all over it..what do they think, same sex marriage cant end in divorce too???

    10. Doc Hilliard says:

      The obvious answers are (1) outlaw any religion contrary to Mr Obama's views, (2) eliminate marriage altogether, depending only on whatever "social contracts" any number of living beings, not necessarily all humans, not necessarily all of a different gender, draw up and sign off on (or leave a paw print thereon) and not limited to a particular number of participants (traditionally two only, but who's paying attention to traditions, say, of one each of different genders of the same species).
      Of course it otherwise be helpful to stock up on judges who know their assigned role, and actually know something of law.

    11. David Snyder says:

      We have more to fear from liberals than we do Terrorists! Liberal Activist Judges add to the problem.

    12. pjwj79 says:

      I am a fiscal conservative, but believe that you cannot discriminate against someone because they are gay. That is singling out one group of people just like it was in the pre-civil rights days. I saw a poll that over 70% of 18-34 year olds (am am 50+) are in support of gay marriage. They live this. There are openly gay kids in the schools and they see it as it is: just another person trying to live their lives. The tide is turning. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these …are life, liberty and the pursuit of happiness. Conversely, I am also a staunch supporter of religious liberty (even though I hold no specific religious affiliation) and the current mandate to have Catholic University's and Hospitals provide contraception is an infringement on First Amendment Rights.

    13. Paul Stone says:

      Does the right to vote mean nothing any longer? It looks like it does since an unelected body can overturn it.

    14. Peter says:

      Your article about the Ninth Circuit's decision about same-sex marriage evinces some of the sloppiest thinking I have seen in quite a while. How does the extension of marriage to encompass same-sex couples be "against marriage?" Does it reduce the rights of men and women in heterosexual marriage?

      And how do you attempt to reconcile your objection to this decision with your claimed support of individual rights? I like Thomas Jefferson's definition of liberty,

      "But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others."

      The "slippery slope" arguments, such as claiming allowing same-sex marriage will lead to pedophilia, are particularly silly. One might as well reason that doing away with estate taxes will lead inexorably to the repeal of sanitary standards and the prospect of raw sewage swirling through your kitchen.

      If you can't name the ways in which same-sex marriage infringes on the rights — not the desires, beliefs, opinions, or prejudices — of others, then you have come out against liberty. In that case you might as well rename yourselves as the "More-or-less according to convenience Heritage Foundation."

    15. M. Socci says:

      There is a huge difference between Marriage of a man and a woman and those of same-sex couples. Not only does same sex marriage demean that of a man and woman marriage; there is the addition of children to be considered. Were speaking of family history of inherited illnesses, DNA, and all that goes with it. That has always been the purpose of marriage between a man and a woman. That is precisely why it has been in place for thousands of years.
      I know that the union of same-sex couples is, undoubtedly, very special to them; however, the homogenization of marriage is not the answer. It is a separate category; and, the distinction should be obvious to everyone. There used to be, and maybe still is, what is called Common Law Marriage. Perhaps that could be considered as an alternative terminology.
      Categories define people. Marriage between a man and a woman; and, same-sex couples is the difference between night and day. You may not think so; but, It is What it is. Deal with it!

    16. Barbara Bell says:


      Whatever happened to "the majority rules?" I guess that was before we had a court stacked against the will of the people of this sad state. Since, in my opinion, California is already in the toilet, one more flush won't matter much.

      • Zack says:

        The Constitution was written to protect minorities from the whims of the majority. All are created equal. Not just those who currently hold a majority in numbers. I assume Ms. Bell that you are white (my apologies if not true) but soon the white majority will be eclipsed by Hispanics. I imagine you'll be grateful for the Constitution then.

    17. Wisdom says:

      The Heritage Foundation will one day embrace Dick Cheney's view that "Freedom Means Freedom for Everyone," and will look back with regret for standing in the way of freedom for many of our law-abdiing, tax-paying countrymen and women.

    18. JOE says:

      We the people mean nothing anymore. The people vote and judge overturns the vote. STOP VOTING.It's a waste of time. Just let the commie judges handle it.

    19. krazykat_randi says:

      I think it's pretty sad that a state votes – not once, but twice – that gay marriage not be allowed in that state, and the people's opinion holds no weight. Besides the slipery slope, one thing very few people have mentioned is what happens to religions that do not believe in or condone gay marriage because that is what the Bible says. If a gay couple comes into the church and demands to be married, the church is faced with a choice of violating their beliefs or opening themselves up to lawsuits. Myself, I see this an attack on freedom of religion. We are losing that, and with that goes the 1st ammendment.

      • Stefan says:

        Churches are free to refuse marriages to anyone they wish. Catholic churches still frequently refuse to marry those who've been divorced. Mormon churches don't conduct interfaith marriages.

        But continue making up excuses to hide your animus of gay/lesbian persons.

    20. Mitchell Brown says:

      The Preamble to the Constitution of the State of California reads: "We, the people of the State of California, grateful to Almighty God for our freedom, in order to secure and perpetuate its blessings, do establish this Constitution." The founders of this Nation, and this State, understood that any government is an instrument of God and when it no longer serves Him He will no longer bless it and will eventually bring it down. The Institution of Marriage is not something that can be legislated. It was given to man, all men, before Christianity, before Judaism, before any government. It was intended as a way to bless man in his service to the Almighty. The Creator intended one man and one woman for life and what God has joined together no man is to put asunder (from the book of Genesis). This means that if God has not joined a man and a woman they are not married. If they are of the same sex their union is not blessed by God. If they are not proper divorced and are committing adultery, they are not blessed by God. This is not subject to legislation. No amount of law passed by men will do away with what God instituted. This is not a phobia or any type of hate. This is a genuine concern for people to prepare them the day of judgment to come in which we must all stand before our Creator with the conduct of our lives. It does not matter if one does not believe all this "religious" stuff or not. Our founding fathers did. This belief is the foundation of our laws for guidance in moral and ethical behavior. To determine that God's view, or that the view of our founding fathers is unconstitutional is flatly unconscionable. Most of the ninth circuit court judges should have been impeached long ago, especially judge Reinharht for their hostility toward God and any moral standings.

    21. Great NW says:

      My head is spinning from the liberal flip-flop on the importance of marriage. In the 70's, the liberal mantra was that marriage was an outdated institution. A relic of a patriarchal society that kept woman in bondage. It was common to hear liberals claim they did not need a piece of paper to recognize their relationship. Now, they claim this outdated "piece of paper" is a constitutional "right" after years of diminishing the value of marriage! I have a hard time giving anything they say about fairness or equal rights any credibility after years of such remarks.

    22. Herb says:

      The president has responded to signals from George Soros indicating a need to ramp up culture war to achieve a real street clash between TEA-party activists and their supporters and the fraudulent, Leftist "Occupy Wall-Street" movement (and its leftisit supporters). The goal is street riots by mid-summer that can be manipulated into blame on the Tea-party and Conservatives and Christians. The Dems/Left can count on the MSM to distort public perceptions sufficiently to allow BHO to declare martial law and shut down all (or conservative parts of) broadcastiong and internet. The Street will truely errupt after that. Then we may witness the US military being forced to act against the people. The goal is to never arrive at the election, due to suspention of the Constitution and of all normal life. I understand this sounds too radical for many to grasp. BHO is that cunning and devious (why Geo Soros chose and elevated him).

    23. Tom Little says:

      Freedom of expression is necessary for the exchange of ideas. It is inherent for all of us to maintain this . The problem here is that we are led to believe that the 5% who may have "Gay " leanings represent a much more vocal and perceptively bigger part of society than they actually are. The volume of information pushed into our daily lives is unprecedented. Whether we are to believe that this is politically motivated, or just another attempt to tip the scales of justice for another special interest group, we must not allow this degradation of our morals standards to continue. While we should accept that the freedom to express oneself is important in the lives of some, it can not take precedence over the normal family experience that the vast majority of us live and enjoy. We must stand up for the traditional values of Marriage and Family.

    24. This argument and other arguments simiiar in nature will continue as long as what Isir Abelon said when he quoted SIR EDMUND BURKE in that "THE ONLY THING NEEDED FOR THE TRIUMPH OF EVIL IS FOR ALL GOOD MEN (AND WOMEN) TO DO NOTHING. And far to many men and women do nothing. Prop 8 passed by having the most votes, "Democracy" at work- or is it? It seems to me "Democracy" is only for the politicians and judges and not for the people. Isir Abelon also said "we need to stand up and fight" and some of us are, but that's the problem, it's only some of us and we are scattered and unconnected. I would like to encourage everyone who has commented to view: http://usaintegrity.com/blog/2012/02/09/the-law-i… it gives a solution to what those of us who are fighting can do on some of the other pages, and this page gives suggestions on how issues as is being debated here can support the majority as is what passed Prop 8 in the first place.

    25. Kenneth Bittle says:

      First of all marriage is not a right. Second the people have the power, not the courts. These liberal courts are unconstitutional. The power of the people spoke when we voted in favor of prop 8. These gay marriage sicken my stomach.

    26. Kenneth Bittle says:

      First I would like to start off that marriage is not a right. Second we are not a democracy, we are a REPUBLIC. Third the ninth circuit court does not have the power the people have the power, which makes this court illegal and unconstitutional. And we do have to stand up and fight against this liberal court and their president.Prop 8 passed with majorty of the vote. Gay marriage sickens my stomch.

    27. Anonymous says:

      We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator by certain inalienable rights, that among these are life, liberty, and the pursuit of happiness. Yes, the Christian faith teaches that homosexuality is wrong, but the U.S. is not and should not be, a Christian nation.

    28. They already won.. Same sex marriage has been adopted by different state..

    29. Han says:

      America has lost its common sense with this topic. From a broader perspective- no one can argue the fact that it takes a man and a woman to create new life. This simple law alone is what keeps our human race from extinction. It should be protected and recognized and not be ignored. Man/Man or Woman/ Woman kinds of ‘marriages’ can have their own separate laws but should not be treated as equal to Man/Woman marriages. Huge difference between the two when it comes to human race preservation. Preserve and protect man/woman marriages-our life depends on it.

    30. Justin says:

      My head is spinning, spinning I tell you. Truly some Americans are a breed apart… Truly there is self evident lack of critical thinking. I ask every single one of you commenting here. How does two consenting adult persons of the same sex marrying each other affects you and your own? For the likes of me I simply cannot come up with one effect on my marriage; my wife cannot either.

    31. larry says:

      just goes to show that the courts don't care what the people want after all they think we are stupid. they are trampling all over the peoples rights and the constition. when are we going to wake up people!!

    32. Katie says:

      "Everything that we see is a shadow cast by that which we do not see. "
      Martin Luther King, Jr.

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