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Landmark: Judge overturns Calif. ‘gay marriage’ ban

SAN FRANCISCO (BP)–A federal judge Wednesday handed down a landmark decision that could impact religious freedom and lead to the reversal of traditional marriage laws in every state, striking down California’s voter-approved constitutional amendment that banned “gay marriage” and ruling it violates the U.S. Constitution’s equal protection and due process clauses.

It is the first time a federal judge has found a constitutional right to “gay marriage” and it is certain to be appealed to the U.S. Ninth Circuit Court of Appeals, typically viewed as one of the nation’s most liberal courts. From there, the Supreme Court would be the next stop.

If the nation’s highest court upholds the decision it likely would result in the reversal of constitutional amendments and statutes in 45 states defining marriage as between one man and one woman. Only five states and the District of Columbia currently recognize “marriage” between homosexuals.

Already, some are warning the decision, if upheld, could become the Roe v. Wade of “gay marriage.”

The much-anticipated ruling by Judge Vaughn Walker was not a surprise — conservatives had been pessimistic for months following his trial rulings — but nonetheless was a monumental victory for homosexual activists who are trying to legalize “gay marriage” from coast to coast. The decision overturned what is known as Proposition 8, a constitutional amendment that passed by a margin of 52-48 percent in 2008 and defined marriage as between one man and one woman. Prop 8 reversed a ruling by the state’s highest court legalizing “gay marriage.”

The lawsuit was filed in 2009 on behalf of two same-sex couples by Ted Olson and David Boies, the two high-profile attorneys who were on opposite sides of the 2000 Bush v. Gore case.

“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” Walker wrote in a 136-page ruling. “Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.”

It is the second time that courts have overturned California voters on the issue of marriage. The 2008 California Supreme Court decision temporarily legalizing “gay marriage” reversed Proposition 22, an initiative that passed at the ballot in 2000 defining marriage in the traditional sense.

Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, called the ruling a “grievously serious crisis” regarding “how the American people will chose to be governed.” The ruling, Land said, should lead to a movement to pass a marriage amendment to the U.S. Constitution.

“Our forefathers have given us a method to express our ultimate will,” Land told Baptist Press. “… If the Supreme Court fails to uphold the will of the people of California — if we are going to have our form of government altered by judicial fiat — then the only alternative left to us is to pass a constitutional amendment defining marriage as being between one man and one woman.

“Many senators who voted against the federal marriage amendment the last time it came up publicly said that if a federal court interfered with a state’s right to determine this issue, they would then be willing to vote for a federal marriage amendment. Ladies and gentlemen, prepare to vote.”

Land predicted Supreme Court Justice Anthony Kennedy will cast the tiebreaking vote if the case makes its way to the high court. Land, though, said he is not confident Kennedy will vote with the court’s conservative bloc.

Anticipation of Walker’s decision was so high that at one point Thursday afternoon, the social networking website Twitter.com was receiving 72,000-plus Prop 8 “Tweets” each minute.

Walker’s ruling came less than a month after a federal judge in Massachusetts issued another first-of-its-kind decision, reversing part of the 1996 Defense of Marriage Act and ruling that the government cannot constitutionally distinguish between traditional marriage and same-sex “marriage.” That decision likely will be appealed.

California is among 29 states to define marriage as between one man and one woman in their state constitutions. Another 16 states define it in state statute. California already has a domestic partnerships law granting same-sex couples all the legal benefits of marriage, but Walker said it was not sufficient.

“What’s at stake here is bigger than California,” said Andrew Pugno, an attorney allied with the Alliance Defense Fund and the general counsel for ProtectMarriage.com, the group behind Prop 8. “Americans in numerous states have affirmed — and should be allowed to continue to affirm — a natural and historic public policy position like this. We are prepared to fight all the way to the U.S. Supreme Court if necessary.”

Natural, traditional marriage, Pugno said, “has universal functions and features attributable only to unions between a man and woman” and “acts as the predominate relationship in which to create and support children.”

Said Family Research Council President Tony Perkins, “Marriage is recognized as a public institution, rather than a purely private one, because of its role in bringing together men and women for the reproduction of the human race and keeping them together to raise the children produced by their union. The fact that homosexuals prefer not to enter into marriages as historically defined does not give them a right to change the definition of what a ‘marriage’ is.”

The San Francisco Chronicle reported in February that Walker himself is homosexual — a fact that led both sides of the issue debating whether such a revelation is pertinent. The case was randomly assigned to him. He was nominated by the first President Bush.

Religion was a major theme on five of the 12 days of trial testimony, with orthodox views on homosexuality cast by the plaintiffs as bigoted. The official statements on marriage of the Southern Baptist Convention and Roman Catholic church were read in the courtroom on the trial’s third day as examples of prejudice. On the seventh day, Stanford University political science professor Gary Segura, a witness for the plaintiffs, called religion “the chief obstacle for gay and lesbian political progress.”

“They were trying to show that religions during the Prop 8 campaign were pandering to prejudicial stereotypes to motivate the voters,” Jordan Lorence, an attorney with the Alliance Defense Fund, which supports Prop 8, told Baptist Press. “That feeds the fires that those who take an orthodox Christian view on the definition of marriage are the equivalent of Ku Klux Klan bigots that need to be driven to the margins of our society.”

Religious liberty will take a hit if the ruling is upheld, conservative groups are warning. They point to a host of legal cases in recent years that they say prove their point.

In New Mexico last year, a state judge ruled that a husband-and wife-owned photography company violated state anti-discrimination laws when they refused to take pictures of a lesbian commitment ceremony. In New Jersey, a Methodist-owned beachfront property lost part of its tax-exempt status because its leaders denied use of the property to a lesbian couple for a commitment ceremony. States with “gay marriage” also have seen controversies over what is taught in public schools.

Land said he is seeing “an unprecedented effort going on across the nation” whereby Christians are “uniting for sustained prayer, for revival, awakening and deliverance.” He encourage Christians to visit 4040prayer.com to learn ways they can pray for the nation.

The case is Perry v. Schwarzenegger.
Michael Foust is an assistant editor of Baptist Press. The ruling can be read at http://bit.ly/cAAkx2. The Southern Baptist Convention has a ministry to homosexuals. Find more information at www.sbcthewayout.com.

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  • Michael Foust