Next Battle Coming in Same-Sex Marriage War

Editor’s note: On September 17, the legal team will file its opening brief with the U.S. Court of Appeals for the 9th Circuit in Perry v. Schwarzenegger to defend the constitutionality of the California marriage amendment.  Brian W. Raum, head of marriage litigation for the Alliance Defense Fund, is part of that legal team and provided the following column to HUMAN EVENTS.

Attorney Ted Olson appeared on “Fox News Sunday” last month to discuss the August 4 federal court ruling on the California marriage amendment. Amazingly, Fox, well known for its “fair and balanced” programming, decided not to include a representative from the team of attorneys defending the amendment, even though it contacted us and we confirmed our availability. As a result, Olson enjoyed unfettered airtime to communicate his message.

After Olson’s monologue, host Chris Wallace courteously complimented Olson and stated that, based on his performance during the interview, he did not know how Olson had ever lost a case at the U.S. Supreme Court.

To be sure, Olson is a fine attorney, but it is much easier to be an advocate when you don’t have an adversary—something that does not happen at the Supreme Court. So, as one of the attorneys defending the amendment approved by 7 million Californians, I thought it necessary to address some of the points made in the interview now that the case is nearing the 9th Circuit’s opening brief deadline of September 17.

Judicial Activism

When asked how he would define “judicial activism,” Olson stated, “Most people use the term judicial activism to explain [court] decisions that they don’t like.” But, as Chris Wallace accurately pointed out, Olson has publicly criticized judges as activists when they have failed to apply the law but instead acted like “legislatures of one.”

Olson was correct about that then, because the people, either directly or through their elected representatives, are the ones who institute law, and it’s the court’s constitutional responsibility to apply that law. Moreover, once the U.S. Supreme Court issues a binding decision, trial courts must follow that legal authority. But that did not happen in this case.

Olson emphasizes the fact that the Supreme Court has on 14 occasions recognized that marriage is a fundamental right and therefore, he argues, his clients aren’t asking for any new rights. What he fails to mention is that the Supreme Court has uniformly discussed the fundamental right to marry squarely in the context of a man and a woman—and associated that right directly with the bearing and raising of the next generation.

At the same time, Olson, during the interview, makes the erroneous and inconsistent claim that the Supreme Court has yet to address the issue of same-sex “marriage.” The Supreme Court has considered the issue of same-sex “marriage,” and it rejected it. In 1972 in Baker v. Nelson, the court found that a case raising legal issues just like Perry v. Schwarzenegger did not raise any substantial federal question, much less a fundamental constitutional question.

And what is a fundamental right anyway? Well, the Supreme Court has repeatedly explained that a fundamental right is one that is “objectively, deeply rooted in this nation’s history and tradition.” Most fundamental rights are expressed plainly in the Constitution—like the right to free speech and freedom of religion. And the Supreme Court has recently cautioned the lower courts to be very careful when expanding the concept of fundamental rights beyond what is clearly outlined in the text of the Constitution.

Not only has the Supreme Court rejected a constitutional claim to same-sex “marriage,” a host of other federal and state courts have done the same.

But the recent opinion issued in the Perry case neglected to explain why it was not bound by Supreme Court precedent, nor did it explain why it should not follow the vast weight of legal authority which holds that the fundamental right to marry is limited to the union of a man and a woman. Instead the court simply failed to address these legal authorities, choosing instead to act on its own, contrary to the will of over 7 million voters in California. This is judicial activism at its worst.


Olson also repeated what has become a common theme for those who desire to redefine marriage: He compared those who support marriage as we have always known it to racists. Specifically, he equated the definition of marriage as the exclusive union of a man and a woman to laws which prohibited interracial marriage.

But this analogy, while perhaps appealing to some on the surface, evaporates immediately upon closer inspection.

First, unlike race restrictions, the fundamental definition of marriage is a universal construct appearing in every society throughout history. It is based on the biological reality that men and women are attracted to each other, and when they get together—more often than not—children are conceived. Marriage is society’s way of connecting children to their biological parents for their well being and the benefit of society as a whole. It matters not that some opposite-sex couples will not or cannot produce children; the relevant fact is that most can and will. That is why the government is in the marriage business.

Marriage as we have known it did not arise arbitrarily or as the result of improper motives. The same cannot be said for race restrictions, which are, by definition, arbitrary and illegitimate.

Such laws were at odds with the fundamental purpose of marriage because interracial, opposite-sex couples tend to produce children just like all opposite-sex couples, and society has the same interest in connecting those children to their biological parents through marriage as it has for all other children.

Furthermore, the laws which prohibited whites and “nonwhites” from marrying did not prohibit other races from marrying each other (for example, blacks could marry Asians). This starkly demonstrates that those laws were intended to promote a form of “white supremacy.” Retaining the fundamental definition of marriage is nothing like the racist laws that, for a relatively short period in the timetable of history, blighted the laws of some states. Race is simply irrelevant to the government’s interest in marriage, but mothers and fathers are not.

The Perry v. Schwarzenegger Trial

Olson also claimed that he and his legal team produced an “overwhelming record” and that “the other side really produced no evidence at all. In fact, they said during the course of the trial they didn’t need to prove anything, they didn’t have any evidence, they didn’t need any evidence.”

He said this to my utter amazement. Let’s set the record straight. The fact is that we entered into the record more than 8,000 pages of documents supporting the constitutionality of Proposition 8, conducted over 23 hours of cross-examination resulting in countless key admissions from the plaintiffs’ witnesses, and presented the testimony of two expert witnesses—all of which resulted in over 1,200 of pages of trial testimony.

But as a fundamental matter, trials are intended to resolve factual disputes, not legal questions. The use of experts at trial is typically for the purpose of determining technical issues like whether a doctor committed malpractice or to determine the value of a piece of property. Constitutional questions rarely go to trial because those issues, at their heart, revolve around legal questions: what the Constitution says and what it means. The Perry case is no different.

From the beginning, the defense team, of which the Alliance Defense Fund is a part, argued that this case should be decided based on the law and binding legal precedent. Because of this, we filed papers asking the court to decide the case without a trial. That request was denied. In light of what I explained above, you may be wondering why.

The reason, as many have rightly observed, is because this case, sadly, has been more about politics than law, more about emotion than the Constitution. In fact, it was more like a political campaign than a legal proceeding.

Plaintiffs’ witnesses admitted under oath that they were activists who supported same-sex “marriage” from an ideological point of view. Their testimony reflected to a large degree policy judgments and a view of history which can only be seen through their particular political prism. But these policy judgments should be left to the democratic process where political campaigns are perfectly proper. That’s what Proposition 8 was all about. Such a campaign should not have been put on trial.

Olson claims that the court’s 136-page opinion “analyzes every single issue, every single piece of evidence.” Perhaps he read a different version of the decision than I read. The version I read does not even mention the host of federal and state cases which have upheld the definition of marriage against constitutional challenges, much less analyze them, nor does it deal with the voluminous evidence submitted by our team.

That record is now before the U.S. Court of Appeals for the Ninth Circuit where, thankfully, more reasonable minds have prevailed so far. Three judges from that court wisely put the trial court’s decision on hold pending appeal so that, at this moment in history anyway, it is just that: One judge’s opinion.

Brian W. Raum is senior counsel and head of marriage litigation for the Alliance Defense Fund ( He is a member of the legal team defending the California marriage amendment in the federal lawsuit Perry v. Schwarzenegger.