Prop. 22 Can Save Traditional Marriage in California

On May 15, four California Supreme Court judges brazenly overturned more than four million California voters, 2000 years of human history, common sense and even common decency.

So how did Gov. Arnold Schwarzenegger react?

“You know, I’m wishing everyone good luck with their marriages and I hope that California’s economy is booming because everyone is going to come here and get married,” he said to the Environmental Defense Fund last week.

Arnie’s strategy has not worked so well for the GOP in California, but fortunately neither the governor nor the politicians, nor the out-of-control judges, will have the last word on marriage in California: The people of California will.

Petition Drive

More than a million Californians have already signed petitions placing the language of Proposition 22 into the state constitution, where it would be safe from arrogant state judges. (No California Supreme Court has ever attempted to overrule the explicit language of the state Constitution.) The text of Prop 22 reads: “Only marriage between a man and a woman is valid or recognized in California.” After passage of this amendment, marriage licenses within the state will be granted only to prospective unions of husbands and wives, and same-sex “marriages” performed elsewhere will not be recognized as marriages within the state.

The petitions to put Prop 22 on the ballot were turned into the secretary of state’s office April 24, three weeks before the California Supreme Court issued its controversial ruling. The 1,122,000 signatures are far more than the 694,000 valid signatures required. The petitions are awaiting official certification, but even California gay rights groups are conceding that the marriage amendment will be on the ballot this fall.

What’s at stake in California’s marriage battle? Even more than most social conservatives realize, because the California court ruling is the most sweeping and radical in the nation. If the proposition loses in California, thousands of couples will spread out across the country challenging other state marriage laws. Judicial elites will be emboldened in these states and in federal courts to adopt the radical views of the California court.

Ideas have consequences. And the California court endorsed two big, brand-new, very bad ideas:

The first idea is that the internationally recognized human right to marry includes same-sex marriage. In U.S. constitutional law, fundamental human rights are those deeply rooted in our traditions. Not even in Massachusetts or in New Jersey could the courts quite stomach the idea that same-sex marriage is deeply rooted in those traditions.

Not even the European Court of Human Rights or the United Nations Human Rights Committee has so ruled. In 2003, the European Court of Justice ruled, “Article 12 of the European Convention on Human Rights protects only traditional marriage between two persons of opposite biological sex.” (For excerpts from these and other marriage cases see “Is Marriage Discriminatory?”

So in rooting around for precedents, the California court took liberal recourse to our neighbor to the North, Canada. Like Canadian courts, the California court grounded same-sex marriage in a larger human right to form families of choice and to have the government sanction all family forms as having equal dignity.

These core substantive rights include, most fundamentally, the opportunity of an individual to establish “with the person with whom the individual has chosen to share his or her life” an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.

Of course the court disclaimed in a footnote that this had any implications for polygamy or incest laws. But at a minimum polyamorists, schismatic Mormons, and Muslim immigrants from countries practicing polygamy will take material aid and comfort from this court ruling.

The California court’s citation of Canadian law is particularly troubling because Canada is the country that ought to be voted “Most Happy to Persecute in the Name of Tolerance.” Just last week the Orwellian “Human Rights” Tribunal of Ontario ruled that Christian Horizons, a charity that runs homes for developmentally disabled adults, engaged in illegal discrimination when it tried to ensure that its employees were practicing Christians who accepted Christian sexual teaching on adultery, fornication and homosexual sex. Worse than the $23,000 fine is a government edict that the organization submit to a re-education plan to change the group’s attitudes.

So the second big idea endorsed by the California court is even less promising: Sexual orientation should be treated just like race under the California equal protection amendment, subject to “strict scrutiny.”

For the reasons discussed below, the court added, “we conclude that sexual orientation should be viewed as a suspect classification for purposes of the California Constitution’s equal protection clause and that statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny under this constitutional provision.”

With this lawyerly sounding language, the California court let the cat out of the bag. Same-sex marriage is not just about letting Adam and Steve get some juicy new government benefits, it’s about inserting into our law the principle that “gay is the new black,” that sexual orientation is just like race and then using the law as a club to repress, marginalize and stigmatize Americans who disagree.

This ruling was not inevitable. Unlike California, even courts in blue states such as New York, Washington and Maryland have since 2003 been able to tell the difference between marriage and bigotry. In 2007, for example, the Supreme Court of Maryland ruled that it is perfectly reasonable for the government to distinguish marriage as the union of husband and wife from other kinds of relationships: “[M]arriage enjoys its fundamental status due, in large part, to its link to procreation. This inextricable link between marriage and procreation reasonably could support the definition of marriage as between a man and a woman only, because it is that relationship that is capable of producing biological offspring of both members (advances in reproductive technologies notwithstanding). Acceptance of this notion is found in the clear majority of opinions of the courts that have considered the issue.”

California’s ruling that ‘orientation is just like race’ is a first for any court in the country and a huge nuclear bomb dropped into the culture wars, upping the ante considerably. The California court ruling, if left undisturbed, means that Protestants, Catholics, Jews and Muslims who see marriage as the union of husband and wife, and view sexual activity as best confined to marriage so defined, are in the exact position as racists under California law. In Great Britain, a similar idea recently led a court to fine an Anglican bishop $100,000 for refusing to hire an openly gay man—as a youth minister in one of his parishes.

There are religious liberty defenses under the U.S. Constitution for youth ministers, but not for Christian schools, physicians, social workers, teachers, attorneys, psychiatrists, counselors or tax-exempt charities.

What will this California ruling mean for Christians and other traditional faiths if allowed to stand? Well, how are bigots who oppose interracial marriage treated by the law? Bigots who oppose interracial marriage can be and are deprived of equal access to substantial government benefits, including government licenses. The government will not give you a license to be a teacher, attorney, physician, psychiatrist, marriage counselor, or social worker if you try to practice your racism openly. Radio broadcasting licenses can be denied to open racists. Accredited universities cannot be run on racist ideologies. Nor can tax-exempt charities.

Could government ever begin treating Americans who see marriage as the union of husband and wife in the same way? Can it really happen here? It already is.

Boston Catholic Charities was driven out of business by the government of Massachusetts, which no longer gives adoption agency licenses to anyone who refuses to place children with same-sex couples on an equal basis with more traditional marital unions. In New Jersey, a Methodist group was deprived of part of its state real estate tax exemption because it refuses to permit civil union ceremonies on church-owned properties.

Fighting Back

California’s court ruling at least makes it clear what the goal of the architects of the same-sex marriage campaign really is. If gay rights advocates don’t really mean to use the law to repress traditional Christians, why do they keep asking courts to rule in this way?

I’d love to get beyond the culture wars in this country. But so far, there are few signs that the courts, or the people who disagree with me, are content to let me.

Fortunately, unlike Massachusetts (which requires marriage amendments to go through the legislature), the people in California do not have to accept this outrageous and sweeping ruling, lying down. They can fight back. They can overturn this ruling at the polls this November.

How did we get a marriage amendment on the ballot even before the court ruled? The people at Protect Marriage filed a petition to put a marriage amendment incorporating the language of Prop 22 into the state Constitution last winter.

In October, I happened to be in San Diego at the invitation of a group of San Diego Catholics who were incensed the San Diego mayor had betrayed his promise and signed the city onto an amicus brief asking the courts to overturn Prop. 22. The bishop is coming to our meeting, the chief organizer mentioned in her phone conversation with me. So I hopped on a plane to meet with this group of outraged Californians and the Catholic bishop they had asked to join their effort: the auxiliary bishop of San Diego Salvatore Cordileone.

By December, local leaders had asked the National Organization for Marriage to come and help raise money and supplement the petition drive which was chiefly organized and carried out by Ron Prentice and Andy Pugno of Protect Marriage.

Executive Director Brian Brown, a charismatic young Catholic, who had previously headed up the Family Institute of Connecticut before joining NOM as executive director, agreed to drop everything, move his family of five children and his home schooling wife, to help. We formed NOM California as a ballot initiative committee to help put the marriage amendment on the ballot this November.

Voices of Gloom Were Wrong

Many good people said it couldn’t be done . I took repeated calls even from some Californian conservatives warning me the effort was doomed to failure: There wasn’t enough time, there wouldn’t be enough money. The gay lobby would defeat us.

The voices of gloom were right about one thing: California gay right groups turned out in force to try to stop us. They launched a public “Decline to Sign” media campaign, paid for four full-time state organizers to frustrate the signature-gathering efforts. Towards the end, NOM California’s office began to be flooded with complaints from signature gatherers that they were being harassed, bullied, even physically intimidated—all in spite of the fact that harassing signature-gatherers is a crime under California law.

But the voices of gloom were dead wrong about the rest of it. In just a few short weeks, NOM California raised almost $1 million and helped collect more than 1,122,000 signatures, far more than the 695,000 needed to qualify.

Californians do care about marriage. Polls show a majority of Californians (including Republicans and Independents and a sizable chunk of Democrats) are with us. In fact, less than a third prefer same-sex marriage to civil unions (which are already law in California).

Gay right activists will pour millions of dollars into this battle, because they know exactly what is at stake. The next step for NOM California and Protect Marriage is to raise $10 million for a sophisticated media and get-out-the-vote strategy.

An epic battle for marriage, religious liberty, and constitutional government will take place in California this November. We will have to take on Gov. Schwarzenegger, the mainstream media, the gay lobby, and the entire judicial and political establishment of the state. But we will take the fight for marriage to the people of California, and we will win.