Federal suit on same-sex “marriage” begins

On January 11, the case of Perry vs. Schwarzenegger commenced in federal district court in San Francisco. The Los Angeles Times provides the background:

The California Supreme Court ruled in May 2008 that the state’s ban on same-sex marriage violated the state Constitution. Proposition 8 amended the state Constitution six months later and reinstated the ban. The state high court later ruled 6 to 1 that the measure was a valid constitutional amendment but unanimously upheld the validity of the marriages of same-sex couples who wed before Proposition 8 passed.

Two same-sex couples, expecting the state court to uphold the measure, filed the federal suit in San Francisco a few days before the state ruling. Unlike the state challenge of Proposition 8, the federal lawsuit contends that the measure violates federal constitutional guarantees.

Indeed, the suit last year before the California Supreme Court was ludicrous: it was arguing that an amendment to the state constitution violated the state constitution! Even in ultra liberal California, such an absurdity was shot down.

However, the plaintiffs in Perry vs. Schwarzenegger argue that the California constitution, now containing Proposition 8, violates the federal Constitution. So it comes down to the standard type of law suit that has formed liberal America: the demand that a state or local law (or state constitutional provision) be overturned because it is in violation of the 14th Amendment to the U.S. Constitution, in this case the provision that no state shall deny to any person “the equal protection of the laws.” Of course the liberals have redefined “equality” to mean that all classes of persons in all situations should be treated the same (the leftist notion of justice), rather than that the same class of persons in the same situation should be treated the same (the traditional Western idea of justice). Traditional Western justice says, e.g., that a citizen is treated differently from a foreigner, that a criminal is treated differently from an enemy in war. Leftist justice says that a foreigner should be treated the same as a citizen, and that an enemy in war should be treated the same as a criminal.

Given the liberal presuppositions that now govern America, it is possible that California’s traditional marriage clause—and by extension all state anti-homosexual marriage measures—could be overthrown. That’s the homosexualists’ hope. But it’s unlikely to happen. It would require a federal court, and ultimately the U.S. Supreme Court, to find that there are no differences between men and women, and that the very idea that marriage is by definition the union of a man and woman is a denial of equal treatment to same sex couples. It would be a bridge too far. I think the homosexual “marriage” forces will lose.

For more on this, see law professor Kermit Roosevelt’s reply to my questions on the case last August. Though a supporter of same-sex “marriage,” Roosevelt thinks the plaintiffs will probably lose. He writes: “since the demand is for state recognition of a relationship, rather than to be left alone, it’s a weaker argument.”

Posted by Lawrence Auster at January 13, 2010 02:33 PM | Send

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