Thursday, June 28, 2012


George Orwell famously observed that some ideas are so foolish, only a member of the intelligentsia could believe them. Had he lived another sixty-two years, the noted author might have revised his comment to include not-so-intellectual jurists and the current Vice-President--folks whose views have been inordinately shaped by sit-coms like “Will and Grace.”

A bit more than two weeks ago the Ninth Circuit Court of Appeals declined to reconsider the 2-1 ruling by a judicial panel that overturned the almost 600,000 votes by which Proposition 8 passed in 2008.

That proposition defined marriage as it has always been understood throughout history—as the union of a man and a woman. But Judge Stephen Reinhardt, utilizing his legal training to do just what he wanted to do in any case, penned a decision that invalidated Proposition 8 without ruling on the merits of the question that over 13 million Californians voted on.

In his opinion Reinhardt overturned a huge statewide election because, “California had already extended to committed same-sex couples both the incidents of marriage and the official designation of ‘marriage.’” In fact, it wasn’t “California” but a handful of judges that extended the marital designation in contravention of the expressed wishes of California voters (61 to 39 percent) in the year 2000.

Topping that mischaracterization was the assertion that Proposition 8 had no rational basis—that its only purpose was “to lessen the status and dignity of gays and lesbians in California.”

In his dissent to the court’s most recent Prop. 8 ruling, Judge Diarmuid O’Scannlain observed that Reinhardt’s opinion was based on a “gross misapplication of Romer v. Evans…that would be unrecognizable to the justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it.”

Lesser mortals without Reinhardt’s talent for legal sleight of hand might have had second thoughts about equating the druthers of a few black-robed jurists with “California” and impugning (through his misuse of Romer) the motives of seven million Californians.

Reinhardt and company, however, were eager to dismiss as hateful views that coincide with the mores of every major civilization and the traditional teachings of every major religion—views that embrace the formerly taken-for-granted idea that procreation and the care of both a mother and father are integral to an institution whose very existence derives from society’s view of a child’s best interests.

It is possible that the Supreme Court will take up this case. But if not, one could accurately say that an absurd policy will govern California largely thanks to a few ideologues and a Hollywood sit-com.

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