Conservatives 'Cautiously Optimistic' Supreme Court Will Uphold California's Prop. 8

By Patrick Burke | June 7, 2012 | 6:33pm EDT

FILE - Homosexual groups protest while Judge Vaughn Walker hears California Proposition 8 case in 2010. (AP photo)

( - Conservative legal scholars say they are “cautiously optimistic” that the U.S. Supreme Court -- assuming it hears the case -- will ultimately uphold California's Proposition 8.

The 2008 ballot initiative, which passed with 52 percent of the vote, amended the state constitution to define marriage as the union of one man and one woman.

On Tuesday,  the full Ninth U.S. Circuit Court of Appeals in San Francisco denied a request to review a February ruling by a three-judge panel, which sided with a lower-court judge who struck down Prop 8 in 2010.

Brad Dacus, president of the Pacific Justice Institute and a supporter of Proposition 8, said the refusal of the full court to review the ruling by a three-judge panel was a way to “expedite” the same-sex marriage question to the U.S. Supreme Court.

“Irrespective of the individual position the judges on the Ninth Circuit may have with regards to Prop 8, they pretty much all know that it’s going to be decided one way or the other before the United States Supreme Court,” Dacus told

“And it just makes good jurisprudence for them to allow the matter to be expedited and heard before the Supreme Court if in fact it is most apparent that the Supreme Court will be taking up that issue one way or the other.”

Brian Brown, president of the National Organization of Marriage, is urging the Supreme Court to reverse the Ninth Circuit panel's ruling.

“We are calling on the U.S. Supreme Court to preserve our democratic rights and overturn this action of judicial arrogance,” Brown said in a statement.

The majority of the 25 active judges in the Ninth Circuit decided the court would not rehear the case en banc.

However, Judge Diarmuid O’Scannlain, joined by Judges Jay Bybee and Carlos Bea, wrote a blistering opinion dissenting from the decision, which mentioned President Obama’s recent declaration of support for same-sex marriage.

“A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same-sex marriage as a policy matter,” O’Scannlain wrote.

“Drawing less attention, however, were his comments that the Constitution left this matter to the States and that ‘one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.’

“Today our court has silenced any such respectful conversation. Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia,” the judges wrote.

“Even worse, we have overruled the will of 7 million California Proposition 8 voters based on a reading of Romer 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. We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court,” O’Scannlain wrote.

However, in an opinion that provided the reasoning for the majority’s refusal, Judge Stephen Reinhardt said he was “"puzzled” by the reference to President Obama, and pointed out that, in its February decision, the judges had not ruled on the validity of same-sex marriage under the US Constitution, but rather on “the particular circumstances relating to California’s Proposition 8.”

“We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage,” the opinion stated.

Reinhardt added: “That question may be decided in the near future, but if so, it should be in some other case, at some other time.”

California homosexual activist groups, meanwhile, applauded the Ninth Circuit for refusing to hear the case en banc, and said they are confident the Supreme Court will uphold Walker's decision.

"Two federal courts in this case have affirmed what we know to be true -- that Proposition 8 seriously infringes on the guarantee of equal protection and serves no legitimate state interest," said Equality California board member David Codell.

"We agree with the majority of the judges of the Ninth Circuit that there was no need to rehear this case because the decision to strike down Proposition 8 rested on solid constitutional principles."

In 2008, 52 percent of California voters supported Proposition 8 to amend the state constitution and legally define marriage as between one man and one woman.

In 2010, U.S. District Judge Vaughn Walker overturned Proposition 8, and ruled that it violated the Equal Protection Clause of the U.S. Constitution. The sponsors of Proposition 8 appealed the decision to the Ninth Circuit.

In February of this year, in a 2-to-1 decision, a three-judge panel of the Ninth Circuit upheld Walker’s ruling.

In his opinion, Judge Reinhardt ruled that California voters did not have legitimate reasoning to pass something that “treats different classes of people differently.”

The court also held that Judge Walker, who publicly revealed his homosexuality after retiring from the bench, had not committed any impropriety by sitting in judgment on the case, though it said he should have disclosed his homosexual relationship earlier.

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