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Bench Memos

NRO’s home for judicial news and analysis.

No Court Should Redefine Marriage



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No court can change the nature of men and women, or change the truth that the complementary union between husband and wife is different from any other human relationship. And no court should presume to redefine marriage — yet two of three judges in the oft-overturned Ninth Circuit have attempted to do so with Tuesday’s decision in the lawsuit over California’s marriage amendment, Perry v. Brown.

The decision emphatically denies any holding regarding “whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so.” Instead, the court boldly extends the holding of an unrelated Supreme Court decision, Romer v. Evans, to conclude that once same-sex unions are granted the title of “marriage,” that moniker cannot be taken away. Not surprisingly, the Ninth Circuit was completely unconcerned with the fact that Californians never granted any ability for two men or two women to “marry” — that short-lived “right” was granted by a one-vote majority of California’s Supreme Court in 2008.

The Ninth Circuit should not attempt to undercut the democratic process by taking the power to preserve marriage out of the hands of the people. Americans overwhelmingly reject the idea of changing the definition of marriage: 63 million Americans in 31 state elections have voted on marriage, and 63 percent voted to preserve marriage as the timeless, universal, unique union between husband and wife.

No one should be surprised that this Hollywood-orchestrated attack on marriage, which was tried in San Francisco, turned out this way. But as the primary legal defenders of California’s marriage amendment, we are confident that the expressed will of the American people in favor of marriage will ultimately be upheld. To that end, every pro-marriage American should be pleased that this case can finally go to the full Ninth Circuit or the U.S. Supreme Court — where, we are confident, the American people’s definition of marriage will be upheld. The ProtectMarriage.com legal team’s arguments align with every other federal appellate and Supreme Court decision on marriage in American history.

This is only one battle. The good news is that those who wish to see marriage protected are still winning the war across the nation. Society should protect and strengthen marriage between husband and wife because marriage protects and strengthens children, families, and society.

— Brian Raum is senior counsel and head of marriage litigation for the Alliance Defense Fund (www.telladf.org) and is a member of the ProtectMarriage.com legal team defending the California marriage amendment in the federal lawsuit Perry v. Brown.



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