A Legal and Policy Analysis of Perry vs. Brown/Coleman vs. Brown –

10-16696, 10-16751, 11-17255


Jay B Gaskill

Attorney at Law

W hat are we to make of a panel of the recent 9th Circuit Court of Appeal decision upholding California’s judicially-created “gay marriage” right as against a vote of the general California electorate (in the now eponymous Proposition 8ii) to the contrary?

Is this an epic civil rights case or something else?

Unless the US constitution is amended or radically reinterpreted, each state government has great latitude in fashioning its marriage and divorce laws. It follows from this view that it would be an improper extension of federal power , say, were the Congress to attempt to create radical uniformity among the states in alimony, family support, community property, duration of residence requirements, rules affecting child custody and the like.

Marriage is a civil institution in the US, a legal construct if you will that has been laid over the template of a preexisting religious institution of ancient provenance.

Unless the US constitution is amended or radically reinterpreted, each religious community enjoys complete freedom from federal interference with respect to the marriage issue, including what is or is not sacramental, what is or is not subject to official religious recognition and blessing. In the traditional religious sense, a marriage is a covenant between a man and a woman, wherein the term-of-art covenant is meant to convey the presence of divine sanction, a three way compact if you will. In general, the religious marriage compact is intended to create a family unit, one that contemplates dependent children, whether born into the marriage or adopted. Religious institutions do not, of themselves in this country, create legal obligations; their province is the realm moral obligations.

For most of our history, civil marriage laws have closely tracked our mainstream religious marriage traditions and norms. The advent of civil unions and child support obligation for the non-married represented a major divergence point.

There is no enforceable civil right to require the religious validation of one kind of marital relationship over another and no federal power in any event to do v ery much of anything about how the various states handle such issues.

As an individual, church-going judeo-Christian, I have no moral problem whatsoever with our brothers and sisters who are same-gender oriented. I would not deny those who are in committed, adult, same gender unions the enjoyment of the legal benefits and concomitant obligations that are available to and imposed on traditional married couples. Equal treatment of persons equally situated, on at least the matters that are germane to their situations, is fundamentally reasonable and proper… at least in my moral and legal universe.

But t he official title of such same gender, martial-style relationships is a different matter, not dissimilar to the “brand name” problems when a generic cola maker tries to appropriate Coke® or Pepsi® trademarks. The gay marriage® brand name controversy is manifestly not an epic civil rights struggle.

Now to the 9th Circuit Proposition decision. Note that this was a 2-1 decision by a three judge panel, not the entire 9th Circuit. It is unclear whether the case will now be referred to the entire 9th Circuit or left as its.

Like many other 9th circuit opinions, this decision is an outlier, almost certainly not to be followed by the other federal circuits. The linchpin of the 9th Circuit decision is whether the California Supreme Court properly located a “gay marriage approved” provision in the California State Constitution (by implication and inference) when no such language ever appeared there and when a clear majority of voters have twice declared the polar opposite. As it appears to this lawyer, whether the 9th Circuit decision is or is not upheld by SCOTUS will mean very little outside California. Unless the high court were to locate a “gay marriage approved” provision or a “gay marriage not approved” in the US constitution, other states will remain unaffected. But the Supreme Court will find neither a pro-gay marriage nor an anti-gay marriage provision in the US constitution, because it’s just not there – whether explicitly or by necessary legal implication.

Now to the policy and politics. As a general rule, highly charged social issues, such as gay marriage, parental notification of child pregnancies, and a host of other matters, are far better resolved on the local level via an emerging social consensus, rather than by a top down decrees that only represent a narrow consensus among certain elites. Proposition 8 passed in California with the help of a super-majority of African American voters, the very same who supported the candidacy of Barack Obama. In general, church going African Americans are liberal on a variety of public policy issues, but not on the social issues like “gay rights” that have enthralled certain elites.

This issue, like so many other divisive conflicts, need s to yield to the “hearts and minds” approach over the fullness of time. There are bigger fish to fry – the dire prospect of a nuclear conflict in the middle East, the possible meltdown of the European economic system, the real risk of a second US economic downturn, of food shortages, rampant inflation, even federal policy paralysis…. You get the picture.

The truly important issue of the day is not when the USA will reach a broad social consensus on the gay marriage issue any time soon, but whether there will be a USA still standing in any recognizable form for the next generations, gay or straight.


Copyright © 2012, by Jay B Gaskill First published on the Policy Think site and the dot 2 Dot blog. Links and forwards are encouraged. For everything else, contact the author – .


February 7, 2012. A federal appeals court strikes down California’s ban on same-sex marriage, clearing the way for the U.S. Supreme Court to rule on gay marriage as early as next year.


November 4, 2008. California voters pass Proposition 8 — which amends the state Constitution to ban gay marriage — with about 52% of the vote. A 2000 ballot initiative banning gay marriage, Proposition 22, had passed with 61% of the vote.

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