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Gay Marriage on Hold


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It’s not often that we have occasion to speak favorably of the U.S. Court of Appeals for the Ninth Circuit, the federal appellate court that has earned a reputation for aggressive left-wing lawlessness. So let’s take note that on Monday a Ninth Circuit panel — with two of its three members being Clinton-appointed liberals, no less — had the modicum of good sense needed to put an abrupt end to the closing act of Judge Vaughn Walker’s anti–Proposition 8 farce.

It’s amazing enough that Judge Walker issued his wild ruling two weeks ago, striking down the California electorate’s restoration of traditional marriage. That ruling, which even a prominent supporter of same-sex marriage has labeled “radical,” was unhinged from reality. Among other things: Judge Walker denied that “gender” — the opposite sexes of spouses — has been an intrinsic characteristic of traditional marriage. He contended that the neutral or beneficial effects of same-sex marriage on the institution of marriage were “beyond debate.” He simply ignored compelling evidence of marriage’s procreative purpose. And he concluded that there was no rational basis for traditional marriage — so that anyone who opposes same-sex marriage is an irrational bigot.

But Walker wasn’t content to issue his final ruling. He also tried to alter the status quo during the appeals process by implementing his ruling right away. The supporters of Proposition 8 requested that Walker block his judgment from taking effect while they pursued their appellate remedies, but Walker denied their request. The obvious effect, and apparent purpose, of his denial would have been to usher in the same-sex marriage revolution in California even before the Ninth Circuit had an opportunity to review his badly flawed reasoning.

In other words, it’s not simply that Walker was overriding the votes of the more than 7 million Californians who voted for Proposition 8. He also tried to make himself essentially a one-man federal judiciary by preventing meaningful review of his ruling by the Ninth Circuit and the Supreme Court.

Monday’s order by the Ninth Circuit operates to maintain the status quo while the court reviews Walker’s ruling. It also means that it is virtually certain that any Ninth Circuit ruling striking down Proposition 8 would also be blocked while the Supreme Court reviews that ruling. It’s very unlikely that the Supreme Court would issue a ruling in this case before June 2012 at the earliest, so don’t expect Walker’s folly to lead to same-sex marriages in California in the meantime.

Remarkably, the Ninth Circuit order marks the third time in less than a year that a reviewing court — the Supreme Court once, the Ninth Circuit twice — has rejected Walker’s excesses in this very case. We won’t venture a prediction here whether the Supreme Court will ultimately misinterpret the Constitution and invent a right to same-sex marriage. But under the orderly appellate review that the Ninth Circuit order allows, we hope very much that Walker endures a fourth and final reversal.



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