In the ongoing saga of the federal court battle over the California marriage amendment, fair-minded third-party bystanders have been scratching their heads after the court asserted that there was a lack of “evidence” to support the constitutionality of marriage as it has always been defined. The reality is, however, that the record is full of “evidence” supporting marriage; the court simply ignored it—mounds of it.
At the outset, it is important to emphasize that the constitutionality of the amendment that Proposition 8 created—affirming marriage as the union of one man and one woman—does not hinge on the testimony of any so-called expert or on the resolution of any “factual dispute” regarding particular evidence. Rather, this case involves a distinct, well-settled issue of constitutional law that is governed by existing legal precedent.
It is also crucial to keep in mind that, like all such democratically enacted laws, California’s marriage amendment carries the legal presumption that it is constitutional. Consequently, those who bring a lawsuit against such an amendment carry the legal burden to prove that it is unconstitutional.
Because of the rule of law, the ProtectMarriage.com legal team, which includes attorneys with the Alliance Defense Fund, relied primarily on controlling legal precedent to support the marriage amendment’s constitutionality—precedent that the district court was legally obligated to follow.
But even though binding legal precedent conclusively establishes the amendment’s constitutionality, the legal team defending that also created an extensive court record concerning the nature, definition, and purpose of marriage and introduced a mountain of evidence showing that “sexual orientation” should not be transformed into a special legal classification for constitutional analysis.
The court was presented with thousands of pages of documents—including the studies and writings of renowned anthropologists, sociologists, historians, and legal scholars—supporting marriage and family. Moreover, through vigorous and comprehensive cross-examination of witnesses called by the plaintiffs in the case, the amendment’s defenders secured key admissions supporting its constitutionality.
The district court, however, simply ignored the controlling legal precedent and the pile of evidence that dominates the trial record.
Let me be clear: The court did not even cite the controlling case law, much less discuss it or distinguish it. It simply failed to acknowledge that it existed.
This legal authority includes the U.S. Supreme Court’s decision in Baker v. Nelson. In that case, a unanimous court dismissed the very same legal challenges which are being made in Perry. For this reason alone, the California marriage amendment should have been upheld.
Even the notorious Ninth Circuit has upheld the constitutionality of marriage as the unique and exclusive legal union of a man and a woman. In fact, the Perry trial court’s decision is in direct conflict with every appellate court decision to have considered the federal constitutionality of marriage. Every single one.
Anyone who was either at the Perry trial or has reviewed the court record should be utterly astonished at the painfully obvious one-sided treatment of the trial record in this case. The district court conveniently omitted from his written decision the many monumental admissions from the plaintiffs’ “experts,” including the testimony of Professor Nancy Cott, who admitted under cross-examination that redefining marriage “definitely has an impact on the social meaning of marriage” which will “unquestionably [have] real world consequences.”
She also testified to what any reasonable and rational person knows: that marriage has been traditionally associated with “procreation.” But the district court failed to address these admissions and dozens and dozens of others.
Nor did the court give any weight to the over 8,000 pages of documentary evidence which were entered into the court record and that fully support the state’s legitimate interest in preserving and protecting marriage.
Perhaps most egregious is the court’s attack on millions of Americans—including 7 million Californians—who, along with the vast majority of judges and lawmakers, have steadfastly affirmed society’s enduring and abiding interest in preserving marriage for the benefit of succeeding generations. These Americans understand that we, as a nation, have a direct interest in endorsing and encouraging a time-tested and historically proven structure which is intended to ensure, as much as possible, that children are born to and raised by both of their natural parents in stable and enduring families.
But thankfully, the appellate courts have an obligation to look at the entire record created in the lower court. The ProtectMarriage.com legal team is confident that the appellate courts will recognize that the overwhelming record created in this case directly undermines the trial court’s opinion and supports beyond reasonable question the constitutionality of the California marriage amendment. And then the only head-scratching will be over why that constitutionality was ever doubted in the first place.
Alan Sears is a former federal prosecutor who held various posts in the departments of Justice and Interior during the Reagan Administration. He is president and CEO of the Alliance Defense Fund (www.telladf.org), which is defending the California marriage amendment in the federal lawsuit Perry v. Schwarzenegger as part of the ProtectMarriage.com legal team.