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FIRST-PERSON: Gay 'marriage' at the Supreme Court -- there are no guarantees

The opinions expressed by columnists are their own and do not necessarily represent the views of
DALLAS (BP) -- An important and protracted battle is taking place over California's Proposition 8, in which 7 million Californians -- 52 percent of voters -- said they wanted marriage not to be redefined, but to remain between one man and one woman.

Gay couples and their advocates challenged the law in federal court and, now, same-sex "marriage" may be headed to the U.S. Supreme Court. We should take a deep breath before we applaud, because this could result in the redefinition of marriage, nationwide.

In district court, Judge Vaughn Walker, a judge nearing retirement and -- we found out later -- a homosexual himself, struck down the law. His reasoning was radical: there is "no rational basis" for denying same-sex couples a marriage license.

Judge Walker's decision was upheld on appeal. Two of the judges on a three-judge panel for the most liberal court in America -- the Ninth Circuit Court of Appeals -- agreed with Walker that Prop 8 violates the Equal Protection Clause of the 14th Amendment.

Now, Proposition 8 supporters are appealing the case to the full Ninth Circuit in what's called an "en banc" review. The court likely will either refuse the case or uphold its panel's ruling. The case could have been appealed directly to the U.S. Supreme Court, but some analysts believe an opinion issued by the larger appeals court panel will broaden the focus beyond California's ban.

California is unique because it already grants same-sex couples all the benefits of marriage through its domestic partnership law. So the two judges in the majority on the Ninth Circuit's panel concluded that Prop 8 had no purpose other than to deny gay couples marriage.


Constitution expert John Eastman of Chapman University Law School told the National Catholic Register that Judge Stephen Reinhardt -- who authored the majority opinion -- "was certainly trying to write a narrow decision in the hopes that he would thereby avoid Supreme Court review and reversal."

But would the Supreme Court reverse the Ninth Circuit? That's not a given. Going to the Supreme Court could spread the damage -- currently contained to California -- to the whole country. The swing vote on the nine-member court appears to be Justice Anthony Kennedy, who wrote the opinions in two cases that make some legal experts think he might overturn Proposition 8.

In 1996, a case known as Romer vs. Evans challenged Colorado's voter-approved Amendment 2, which prevented the recognition of gay and lesbian citizens as a protected class. In a 6-3 decision, the court struck down the amendment, with Justice Kennedy writing that it "imposed a broad and undifferentiated disability on a single named group."

Would he apply that reasoning to denying same sex "marriage?"

The 2003 Supreme Court decision known as Lawrence vs. Texas overturned a Texas law forbidding homosexual acts. Not that you could possibly enforce such a law, and Texas didn't. But the reasoning in the opinion made biological sex irrelevant to coupling and disassociated sex from reproduction, child rearing, and further removed it from marriage. Would Justice Kennedy take the next step and make gender irrelevant to marriage? We just don't know.


Penna Dexter is a conservative activist and frequent panelist on the "Point of View" syndicated radio program. Her weekly commentaries air on the Bott and Moody radio networks. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook ( and in your email (

Copyright (c) 2012 Southern Baptist Convention, Baptist Press

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