Prop. 8 Supporters Prepare for Long Legal Battle

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Adrienne S. Gaines


Supporters of California’s Proposition 8 say they are gearing up for a long
legal battle over marriage after a federal judge on Wednesday struck down the
voter-approved ballot measure that banned same-sex unions in the state.

“We did anticipate that this would happen, but our resolve is greater,” said
California pastor Jim Garlow, who helped organize the -Yes
on 8 campaign. “We have no intention of backing up on this issue because far too
much is at stake.”

In his decision Wednesday, U.S. District Chief Judge Vaughn R. Walker said
Proposition 8 “both unconstitutionally burdens the exercise of the fundamental
right to marry and creates an irrational classification on the basis of sexual

He declared the measure unconstitutional “because Proposition 8 prevents
California from fulfilling its constitutional obligation to provide marriages
on an equal basis.”

He said the fact that 52 percent of California voters passed Proposition 8
was “irrelevant, as ‘fundamental rights may not be submitted to [a] vote; they
depend on the outcome of no elections.'”

Proposition 8 passed in November 2008, just months after the
state Supreme Court legalized gay marriage the previous May.

The federal challenge to the measure was filed in 2009 on
behalf of two homosexual couples who were represented by former Solicitor
General Ted Olson, a conservative, and noted attorney David Boies, who opposed
Olson in the legal challenge to President George W. Bush’s election in 2000. Oral arguments were heard in June.

Traditional marriage advocates were watching the case closely, concerned
that a ruling in favor of gay marriage could impact marriage amendments passed
in 31 states and challenge the Defense of Marriage Act, which defines marriage
as the union of one man and one woman.

“I’ve been convinced that Americans in the other 49 states were largely
oblivious to the fact that what was happening here in this district court had
national implications,” Garlow said.

He said the ruling could open the door to more challenges to state marriage
amendments and to calls for other forms of nontraditional marriage.

“The next court case could conceivably say that if three people wanted to
marry or four people or five people or if someone wanted to marry their dog or
their horse, they have a right to that because no longer do we have a right to
‘discriminate’ based on equal protection,” Garlow said.

Proposition 8 advocates argue that same-sex marriage is not ideal for child
rearing, but they say it also has serious implications on religious freedom.

“It’s a chilling moment,” said TheCall founder Lou Engle, who organized a
prayer rally in support of Proposition 8 in September 2008. “Democracy is
crumbling, and I believe, again, we’re going to see the persecution of the
church. … Across the board, religious freedom now is being trumped by gender

Garlow said in several areas where gay marriage has been legalized,
Christians have lost personal and religious liberties. He points to Swedish
pastor Ake Green, who was jailed after preaching that homosexuality is a sin,
and to a Christian camp in Ocean Grove, N.J., that lost a discrimination lawsuit filed after it
refused to allow a lesbian couple to hold a commitment ceremony at its

“If we lose on this one, we lose the capacity to be able to proclaim the
gospel as we know it,” Garlow said.

Before the decision was announced, both Proposition 8’s supporters and
opponents were poised to challenge the ruling. The case will head to the Ninth
Circuit Court of Appeals and is expected to be appealed to the Supreme Court.

“It’s not radical for more than 7 million Californians
to protect marriage as they’ve always known it,” said Brian Raum, senior legal
counsel for the Alliance Defense Fund, which defended Proposition 8. “What
would be radical would be to allow a handful of activists to gut the core of
the American democratic system and, in addition, force the entire country to
accept a system that intentionally denies children the mom and the dad they

Mary McAlister, senior litigation counsel at the Christian legal firm
Liberty Counsel, expects the Supreme Court to overturn Walker’s ruling. Her
group represented the Campaign for California Families, which supported Yes on
8, and plans to file an amicus brief in the appeal.

“The way the [federal] court approached the due process clause and the equal
protection clause here differs so much from the way the U.S. Supreme Court has
said it needs to be addressed,” she said.

She said Walker’s ruling not only redefined marriage but also put sexual
orientation on par with gender and race.

The case could take years to reach the Supreme Court, but conservative
observers believe Wednesday’s ruling could impact the upcoming midterm election. Garlow
said voters with conservative moral values “are going to rise up and say enough
is enough.”

He and Engle are encouraging that kind of activism through Pray & Act,
an initiative calling for 40 days of prayer and fasting in the run up to Nov.
2. The effort begins Sept. 20 and ends with a webcast event at the Lincoln
Memorial Oct. 30.

Garlow said he believes there is a 27-month window to “turn” the nation
toward biblical values. “I’m not trying to deadline God, but my sensing is we
have a short window left after which it will be too late to see America ever
return to any sense of God-honoring truths,” he said. “That being the case,
prayer and fasting is critical.”

Engle, too, is urging prayer and political activism. He believes the timing
of TheCall Sacramento, being held Sept. 3-4, is strategic.

“God, in times of crisis, calls for solemn assemblies when there is no hope
and there’s no remedy,” Engle said. “I think this is an incredible opportunity
for people to gather from all over America to say: ‘God, we have no recourse … We
are coming to You for help in the time of trouble, to ask forgiveness for
treating so lightly marriage in the church.’

“We [will] come together and ask God for some kind of
sovereign intervention,” he added. “We need to pray for a great awakening.”



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