Arguments for Calif. Prop. 8 May Win the Day -- but not the Battle -- Against Same-Sex Marriage

By Pete Winn | March 8, 2009 | 7:03 PM EDT

Protest by homosexual groups and those who opposed passage of Califormia Prop. 8. (AP photo)

( - Conservative legal experts say attorneys defending the constitutionality of California Proposition 8 may prevail when the California state Supreme Court issues its ruling this spring.

But at least one conservative legal scholar says he doesn’t think that the legal arguments made in defense of the initiative last week constitute the real case against same-sex “marriage” – a case, he said, that isn’t likely to come up in a courtroom any time in the future.

Prop. 8 is the ballot initiative Californians passed last November enshrining the traditional definition of marriage in the state constitution -- a move made necessary because the California Supreme Court ruled on May 15, 2008 that the same constitution required the creation of homosexual marriage. 

The law is being challenged by homosexual couples who legally wed between June 15 and Nov. 4, 2008.  

Brad Dacus, president of the Pacific Justice Institute in Sacramento, Calif., said there is a good possibility that the court will uphold the constitutionality of the initiative – based upon the oral arguments that took place in San Francisco last Thursday.
“It appears that at least five of the seven justices will probably vote to uphold the constitutionality of Proposition 8, and the definition of marriage as one man and one woman, ensuring that no further marriages in other states or in California will be recognized going into the future,” Dacus told 

Dacus noted that several of the justices were “very skeptical” of California Attorney General Jerry Brown, who argued that Prop. 8 is somehow an invalid "revision" of the state constitution.  
In fact,  one of the judges, Justice Joyce Kennard, indicated that she thought that California voters had the right to overturn the state court’s decision last summer creating same-sex marriage.
"Here we are dealing with the power of the people, the inalienable right to amend the constitution," Kennard said.
Dacus saud other judges seemed to grudgingly accept the logic of former federal Judge Kenneth Starr, the attorney for Protect Marriage, the sponsor of the ballot measure.

Starr argued that Proposition 8 merely returned California to what the law was before the May 15 Supreme Court decision. He specifically argued that Californians have “virtually unlimited power” to amend their own state constitution.
“The people have the inalienable right to control their constitution,” he told justices.
Starr also said if the California court does not preserve the process of majority vote amending the state constitution, there’s nothing to stop any majority-supported amendments from being nullified.
Dacus, meanwhile, said the justices seemed very unlikely to hold that Prop. 8 invalidated the 18,000 same-sex "marriages" entered into between its decision last summer and the passage of Prop. 8.
Titus: Stopping Same-Sex Marriage
Constitutional attorney and conservative author Herbert W. Titus, meanwhile, told that while he agrees that those defending Prop. 8 will likely prevail based on the arguments Starr made – those arguments alone will stop same-sex marriage from eventually becoming a reality in California and the U.S.
“The California Supreme Court is being appealed to, to basically take the place of the people,” Titus said.
“Judges didn’t form the state of California any more than judges formed the United States of America. It’s ‘We the people of the United States’ and ‘We the people of California.’ It is the people who have the authority to constitute their government. The Constitution, therefore, is something that is essentially within the power of the people.”
What’s happening in California, Titus said, is that those who support same-sex marriage are saying, “We want judges to tell us all how to live.”
“Of course, the judges actually invited that when they struck down a prior California referendum that defined marriage as one man and one woman,” Titus said. “So the people rose up and said, ‘We know what we are doing, and it is not for the judges to tell us how to constitute our government’ -- and now people who would rather be ruled by judges than the people want those judges to overrule the people. It’s really quite an amazing phenomenon.”
However, the real argument against same-sex marriage comes from the recognition that all law stems from God’s law.
“Our legal system is based upon the assumption that if human beings pass a rule, if that rule is contrary to God’s law, its not law at all,” Titus said. “We’ve forgotten that.”
The Declaration of Independence, one of our foundational documents, affirms that we are “endowed by our Creator with certain unalienable rights.”
“If God is the creator of those rights, then he is the definer of those rights. If we are going to try to define them ourselves, then we lose the very thing that we were given by our founders,” Titus said.
Ironically, the very foundation of the American legal system – God’s law – is now forbidden in American courtrooms, he added. Judges today, Titus said, have absolutely no regard for anyone who will argue on God’s law – or even natural law.
“We now have this assumption that human beings can create whatever law they want to live by and if they say it with their mouth, or write it in an opinion or put it in a statute, that that is the reality, when, as a matter of fact, it is contrary to reality,” he added.
If the nation, in fact, allows judges to create same-sex marriage – eliminating God’s law as the basis for our own statutes – the consequences will be destroy democracy.
“It may not happen in a single generation, but ultimately that’s what happens,” Titus said. “Every society that has attempted to establish a system of rules governing sexual relationships discovers that if they do not honor God’s law with regard to sex, then they will suffer economically, they will suffer physically, and certainly they will suffer loss of liberty.”