Another Anti-Democratic Court Outrage - The Ninth Circuit Upholds A Constitutional "Right" To Gay Marriage

Everything that is wrong with our of control court system is on display today in the Ninth Circuit Court's decision in Perry v. Schwarzenegger, upholding a lower court ruling that the will of over 7 million Californians who voted for Prop. 8 doesn't matter. Morality based on ancient Christian moral precepts doesn't matter. Gay marriage is a "constitutional right" in California.

You can find the entire opinion at Legal Insurrection.

 There is no question that at the time of the drafting of the Constitution and, 70 years later, the 14th Amendment, homosexuality was a legally proscribed practice across our nation.  Thus, using the originalist theory of Constitutional interpretation, gay marriage cannot today be recast as a Constitutional right absent an Amendment to the Constitution.  And indeed, this finding of gay marriage as a Constitutional right by the 9th Circuit is pure judicial activism, creating new rights out of whole cloth.  This is in almost every respect a replay of Roe v. Wade.

Gay marriage is a social issue raised to the fore today on the basis of changing social mores. Since it was not a right envisioned by the drafters of our Constitution and 14th Amendment, gay marriage is an issue that should be solely reserved to the states - and very much more specifically, the states' ballot boxes. This is not an issue for the Courts.

What we see in the Ninth Circuit opinion is just one more group of unelected judges who deem themselves the final arbiters of what U.S. social policy should be and who have no problem with unilaterally amending our Constitution. This despite the fact that the Constitution provides two different methods for amendment, neither of which provides for the unilateral decision of a gay district court judge or two left wing judges on the 9th Circuit Court to depart from the original intent of the drafters.

This is also one more attack on religion in this country - with the left seeking to delegitimize it and raise in its stead their own "anything goes - as long is it doesn't disagree with what we want" morality and mentality. We have seen that morality at work in just the past weeks, with the Obama administration decision to force Catholic institutions to pay for health insurance covering contraception and Plan-B abortion, and we have seen that mentality at work in the left's utterly vociferous reaction to the Komen charity's decision to stop funding Planned Parenthood.

Professor Jacobsen at Legal Insurrection summarizes the Perry court holding thusly: "since there was a prior right to samesex marriage (based on a California Supreme Court decision which gave rise to Prop. 8 ) — the taking away of that right without justification violated the 14th Amendment." So yes, the Ninth Circuit danced around affirmatively finding a right of gay marriage in the Equal Protection clause. That still does not change the fact that they should have dispensed with this case on the ground that the Equal Protection clause allows for no such right and that the will of Californians who voted for Prop 8 should be honored.

So why wasn't ancient morality derived from the Christian religion a sufficient "justification" to uphold Prop. 8. That is because, as a matter of law, Christian moral views are now deemed "irrational" and not afforded any weight.  That is a complete, judicialy imposed break with how our founding fathers saw the role of religion in America.  Compare and contrast this with the Northwest Ordinance, passed by the same people who voted to approve the First Amendment, that "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged;” [and compare as well as with] early Congresses [that] proceeded to make grants of land to serve religious purposes and to fund sectarian education . . ."

At any rate, the Supreme Court led the way in severing Christian morality from our laws when they held in Lawrence v. Texas that morality is no longer a justifiable basis for our laws. If you read that case, you will see that the majority simply disagreed with the Christian morality enshrined in the Texas state law proscribing sodomy. Ironically, what they did instead was to substitute their own moral choices. It was another major marker in the advance of secularism in this country over the will of the people and another major attack on the role of Christianity in the public square.

And thus today do we have the 9th Circuit Court in Perry v. Schwarzenegger ruling that there is no rational basis for denying gays the right to marry in California.  Newt Gingrich and Andrew McCarthy have this one right.  Our courts are completely out of control.  Something must be done to restore the constitutional balance - and preferably, that something will include tar and feathers.