Men in Black Strike Again


Californians have become accustomed to a few people in black robes deciding they know better than the electorate. First, in 2008, by a bare 4-3 ruling, the California Supreme Court struck Prop 22, a voter-approved initiative that limited marriage to one man and one woman. Then California voters passed Prop 8, which had the same language as Prop 22, only this time as an amendment to the State Constitution. When the state Supreme Court upheld Prop 8, the opponents went to federal court, and found a sympathetic homosexual judge that ruled Prop 8 violated the U.S. Constitution. Now, in a 2-1 ruling, the oft-reversed Ninth Circuit Court of Appeals upheld the lower court, essentially saying there was no rational basis for Prop 8 to take away the “right” for same-sex couples to marry. The 89-page opinion, written by Judge Stephen Reinhardt, the most reversed federal judge in the history of American, fails to give proper weight to the fact that the “right” to same-sex marriage was a right imposed by a 4-3 court opinion that only existed for 143 days until the electorate approved Prop 8. It was the effect of Prop 8 eliminating this “right” that was the basis for the Ninth Circuit ruling, not some yet-to-be found “right” to same-sex marriage in the U.S. Constitution. The issue of whether same-sex marriage is a fundamental right under the U.S. Constitution is for another day, when the U.S. Supreme Court decides to weight in. Until then, the message is clear—all men are created equal, but if you wear a black robe, you are more equal than others, including over seven million Californians who approved Prop 8.