June 27, 2013

Where the Prop 8 ruling leaves us:

by Jesse Johnson

I used to referee professional soccer,  and before every game the referees were supposed to check the player’s passcards. You looked at the card, looked at the player, and made sure they matched. There was one game I refereed involving a minor league team when I caught an illegal player. He handed me the card, and the picture didn’t’ look right. I asked him for his place of birth (on the card), and he got it wrong. I asked him his birth date, which he also botched. I asked him when he signed for the team, and he missed that one too.

I reported it to the league, who said…they didn’t have the power to do anything. Now, I imagine the other team felt cheated. But more than that, I looked at how much time I had spent checking passcards. Players at every level used them, and I had been checking them for thousands of games (15 min a game, times bazillions of matches…)—all for naught. It was one big charade.


The Supreme Court’s ruling on Proposition 8 has me feeling like that about our legal system. I wrote yesterday about the history of Proposition 8 (and today’s post really should be read after reading that).. To summarize, Californians passed a law in 2000 saying that marriage was between a man and a woman, but authorizing same sex domestic partnerships with all the benefits of marriage except the word marriage. Four years later an unelected county clerk in San Francisco started giving out marriage licenses to same sex couples, and this lasted for five months until the State Supreme Court stopped it. Then four years later (2008), the court reversed itself, saying the 2000 law was unconstitutional. Christians were essentially told if they wanted to define marriage, they needed a constitutional amendment to do that. Which is what Proposition 8 was, and it passed only a few months later (an unprecedented turn around in California).   

Having had their bluff called, the State Supreme Court could do nothing. They had said that if gay marriage was going to be banned, it took a constitutional amendment, and then they had that handed to them. But opponents of Prop 8 went venue shopping, and took their case to federal court. At the time, legal pundits said their case was slim, and unlikely to succeed.  All that changed when the case was assigned (randomly?) to an openly homosexual judge; all bets were off.

Then the governor and attorney general (the attorney general who won by a smaller margin of victory than Prop 8 passed, I might add) declined to defend it in court. Then the judge refused to let counties defend it, leaving no one with the legal authority to do so.

We should be impressed at the legal finesse of such a maneuver. By constructing a trial on the definition of marriage, but banning anyone who had an interest in putting on a legitimate defense, the resulting case was obviously one-sided. Eventually the Federal 9th Circuit Court of Appeals ruled that a group that gathered funding for Prop 8 could defend it in court, which they did unsuccessfully (the truth is–it seems like they barely tried).

Scotus_PotusBogus_Oval__38424.1340910110.1280.1280Yesterday the Supreme Court reversed the 9th Circuit, and said that the Pro-Prop 8 group did not, in fact, have the legal standing necessary to defend the Proposition. So who does that leave to defend it? That’s right: nobody.

Christians had been told that if they wanted to defend the definition of marriage, they needed to pass an amendment—which they did.

And then they were told that none of that mattered. It was defeated before it started.

SCOTUSblogphotoIf you were not in California during the Prop 8 election, it is hard to imagine the effort that went into its passage. The LA Times ran lists of those who were working to pass it, and they had their businesses protested. College Professors called out students who were in favor of Prop 8. Campuses revoked religious group’s ability to meet or form if they advocated for Prop 8. Fraternities and Sororities removed students if they were in favor of it. Yet the measure still passed. And yesterday the Supreme Court said that none of that mattered to begin with.

It is worth realizing where that leaves us. An unelected county clerk issued marriage licenses with no legal standing (and in fact it was later declared illegal), but that one action was maneuvered into a legal victory. Once she issued the licenses, the horse left the barn, so to speak, and there was no legal way of reversing. Pass an amendment, and the government will just ignore it. Sue them to enforce it, and you have no standing.

The whole legal process in California revealed itself to be nothing more than a charade.

What is left? How does one define marriage?

Well, the biblical definition is obviously a non-starter. The dictionary definition is clearly out too. Yesterday the supreme court showed that the legal definition is likewise invalid, simply because Christians participated in forming it. As it stands, it appears that the definition is whatever was determined by that lone county clerk in San Francisco.

dictionary marriage

Dictionary.com already updated their definition. The best they could do was adding the word “similar.” Similar to what?

Jesse Johnson

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Jesse is the Teaching Pastor at Immanuel Bible Church in Springfield, VA. He also leads The Master's Seminary Washington DC location.
  • Thank you Jesse. Imagine Evangelical response is threefold: (1) God is greater than the court’s decision and that loan county clerk, (2) God alone is good; the court’s evident lack of integrity proves that, and, (3) God’s grace is needed. Rom. 5:20 sums it up: “Now the law came in to increase the trespass, but where sin increased, grace abounded all the more, so that, as sin reigned in death, grace also might reign through righteousness leading to eternal life through Jesus Christ our Lord.” That loan county clerk (and the supreme court justices) know the deep things of God and no matter how hard (they) try to suppress the truth, there is coming a day of reckoning … a day when the “card” and the “player” will be matched and judged accordingly. Oh that they would have the Lord’s grace to save them from the wrath of God!!

  • Tom Howard

    Jesse, your beef should not be with SCOTUS but with your elected state officials who refused to defend the law.

    • Yeah…except that SCOTUS ruled that they would defer to the state supreme court on standing–so in other words they said that the group DID have standing, but then on appeal reversed themselves and said the group DOES NOT have standing. Beyond that, they granted Cert to the case; it is very unusual to grant Cert to a case, then have the majority (including the chief justice) rule that there was no standing to begin with (after they themselves had granted that group standing in the first place!).

      In a lot of ways the two rulings yesterday, while both a win for gay rights, are logically contradictory–a fact Justice Thomas points out. DOMA said that federal gov. should defer to states on marriage. Prop 8 affirmed a federal judge striking down a state rule on marriage. Well, which is it?

  • Pingback: News of Note: The Supreme Court Strikes Down DOMA; Same Sex Marriage Legal in California (UPDATED: Al Mohler and Jesse Johnson’s Commnentaries; Rod Dreher on Justice Anthony Scalia’s Dissenting Opinion; Russell Moore’s Commentary) | Sant()

  • guest

    Good message. That final definition of marriage should also include “an arrangement that can be easily dissolved for unfaithfulness, abandonment, or any other inconvenience deemed fit (see Larry King)”

  • So, I’m sitting at Barnes & Noble reading this and immediately jumped up to check some old fashioned printed dictionaries. The Oxford is very explicit that marriage is the union of a man and a woman. However, the online Oxford now adds that in some jurisdictions this includes same-sex couples.

    Has anyone noticed that not only does the increase of sin denigrate society, but it also dramatically impairs our ability to communicate? That is if I’m using the words denigrate, increase, and communicate properly. We no longer need the post-moderns to tell us that words have no meaning, now the state is doing the same thing. At some point we’re going to have to revert to hieroglyphs just to tell people hello.

  • JD Taliaferro

    It was actually the California Supreme Court that ruled that the Prop 8 proponents had standing, not the US Supreme Court. 52 Cal.4th 1116 (2011). http://scholar.google.com/scholar_case?case=18025881830846879498

    And if I could just say a word in defense of the Prop 8 legal team (who I know well), I don’t think it is fair to say they “barely tried.” They put thousands of hours of time and effort into the case. Experts weren’t exactly beating down the door to testify. Their main expert, David Blankenhorn, now says that he was wrong. In the DOMA case dissent, Justice Alito talks about what a farce the trial was and how difficult the environment was for defendants. http://www.supremecourt.gov/opinions/12pdf/12-307_g2bh.pdf at p. 74-75 (fn 7).

    And finally, and this is informed speculation, but I suspect the standing decision was a convenient escape for Scalia. There were probably five votes to find a nationwide constitutional right to gay marriage (Kennedy, Sotomayor, Ginsberg, Kagan, and Breyer) and Scalia wanted to avoid that so he cobbled together this weird voting bloc on the standing issue. So no matter how disappointed you are now, you could be celebrating that the intervenors had standing – but lamenting a decision that found a nationwide constitutional right to gay marriage.

    • Correct, and fixed. It was the 9th circuit that granted standing, by deferring to the California State Supreme Court.

      As for the delay, what it really does is create a Roe without a Doe. There is now a federal judge who has ruled that state’s can’t restrict marriage, and all that is lacking is a Doe to sue. Right?

      As for the Prop 8 defense, I’m sure they worked hard. You are right about “barely tried” being an overstatement. But honestly? I’ve read the transcripts, and it struck me as what I said yesterday (and this is uniformed speculation), that they made a strategic decision to not put on a defense, almost as a way of showing what a sham the trial actually was. They couldn’t have called a social scientist to present finding that children do better when they have a dad around? For one example.

      I actually wonder (in hindsight) if it wouldn’t have been better for them to no-show at the trial, and just left an empty courtroom. Let the homosexual judge hear from gay activists about how arbitrary Prop 8 was, and then let him strike that down. I mean if the goal was a PR victory, that probably would have gone further. As it stands, they put on a trial without evidence, and it has the veneer (and that is really all it is) of legitimacy; which now the Supreme Court has even pulled back.

      And, JD, just so you know, you are my lawyer. So feel free to bill me (at our normal rate) for the time you spend reading my blogs for legal errors.

      • JD Taliaferro

        You get what you pay for . . .

        The Prop 8 Proponents did put on a social scientist – the aforementioned David Blankenhorn. His testimony included

        * And I would further say that this consensus grows stronger almost every year, because of the accumulating weight of evidence that the optimal environment for children is if they are raised from birth by their own natural mother who is married to their own natural father.

        * the most distinguished scholars in this field, they are increasingly clear and emphatic that based on the available evidence today, it is clear that — that the optimal outcome for children, in terms of outcomes, the optimal environment for children, in terms of outcomes, whether it be the likelihood of living in poverty, whether it be the likelihood and mental and emotional distress and suffering, whether it be juvenile delinquency, or educational achievement, or occupational success, or the likelihood of experiencing abuse and neglect, that across the range of outcome measurements, that this family form of the two biological parent, married couple home, in a stable marriage, is the best model from the child’s point of view.

        * Research clearly demonstrates that family structure matters for children. And the family structure that helps children the most is a family headed by two biological parents in a low-conflict marriage. Children in single-parent families, children born to unmarried mothers, and children in stepfamilies or cohabiting relationships face higher risks of poor outcomes than do children in intact families headed by two biological parents.

        * We have been studying this question for ten years. And our opinion — and in our opinion, the evidence is quite clear, children who grow up in a household with only one biological parent are worse off, on average, than children who grow up in a household with both of their biological parents, regardless of the parents’ race or educational background, regardless of whether the parents are married when the child is born, and regardless of whether the resident parent remarries.”

        “There is now a federal judge who has ruled that states can’t restrict marriage, and all that is lacking is a Doe to sue. Right?” – basically yes, but that’s more a function of the DOMA decision than the failure to find standing in Perry.

        “I actually wonder (in hindsight) if it wouldn’t have been better for them to no-show at the trial, and just left an empty courtroom.” – maybe, but these are all tough calls at the time. Monday morning quarterbacking. Or in your world, Thursday Morning Tippy Tappys.

        “do you see the two rulings as contradictory? One that says marriage is left to the states, and the other that effectively supports a Federal Judge striking down a state’s law on marriage?” – totally contradictory. Not only because of the state/no state distinction, but because the standing issues were roughly analogous. The President and DOJ refused to defend DOMA so someone stepped in to defend it, yet the court somehow found standing. But in California, roughly the same setup was found to not have standing.

    • BTW: here is where I got my info on the initial standing ruling (which I fixed above): http://blogs.findlaw.com/ninth_circuit/2013/06/9th-circuit-cal-supreme-court-reversed-no-prop-8-standing.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+USNinthCircuit+(FindLaw's+U.S.+Ninth+Circuit+Blog)

      Also: do you see the two rulings as contradictory? One that says marriage is left to the states, and the other that effectively supports a Federal Judge striking down a state’s law on marriage?

      • Mandi

        I don’t understand how the BLAG is analogous to the private parties in Perry. Perry seems to me to be an admonition to the people in how they vote. There is no right to initiative or referendum, but we do have a right to vote. We, as Christians, need to be voting for people who will raise their voices on issues like this, who will muster a strong defense for Christian values.

        Also, from a different perspective, in talking with folks associated with the
        defense team in Prop 8, I understood that they did have a certain strategy to avoid certain
        more controversial issues in order to set the case up for Kennedy at
        SCOTUS. While other strategies wouldn’t have changed the outcome on standing. Kennedy’s skirting of a constitutional analysis of equal protection in DOMA encourages me to hope that, in the future, all of the constitutional legal groups that stand for marriage are careful to thoroughly discuss all of the issues, especially with regard to homosexuals’ lack of history of pervasive discrimination, immutability, ability to contribute to society in like manner as heterosexuals, and political powerlessness. There are many experts who are ready and willing to testify in cases like this, regarding the harms of homosexuality and same-sex marriage. It’s a shame only one took the stand in California and that he’s since back-peddled.

  • Christian Felanopolis

    Interesting because the B) added onto the definition includes the key word, “similar” meaning not the same, somethign has been changed. It is not genuine, it’s a knockoff. That being said, is there really ever a time when the knock off works as well? (Gentlemen, if you want to try this experiment, ask your wife what brand of purse or shoes she’d like for Christmas then go buy her the knock off.)

    • 4Commencefiring4

      Well, sometimes the knock-off is better than the original…in some respect. A 1966 Shelby Cobra is worth a fortune, but the newer replicas are probably engineered better.

      Ah, never mind. Give me the ’66 anyhow.

  • Thanks for the light and clarity without the overwrought emotionalism.

  • Mandi

    According to some experts, there is still a fight to be fought, as per the California Constitution, Prop 8 is still good law. Check it out: http://www.breitbart.com/Big-Government/2013/06/26/Not-So-Fast-Prop-8-Still-California-Law

  • 072591

    Allow me to be blunt. America has openly sided against God. Every Christian should leave the military – because to be in the military is to prepare to fight on the side of a nation that is an enemy of our Lord. And every Christian that does not needs to be expelled from the church!

    • Allow me to be equally blunt: That’s crazy!

      Our country has reached nowhere near the level of hostility toward the gospel as took place in…say, Rome. Yet nowhere does the Scripture call Christians to leave the military. In fact, John the baptist told Roman soldiers to serve well and with faithfulness.

      God uses the military to check world wide evil, and next time a nation like Iraq or the Taliban threatens to attack Europe with missiles, or kills bus loads of innocent people to make a political point, it shows seriously messed up priorities to say “Christians shouldn’t participate in checking that kind of evil because our country has gay marriage.”

      I suspect that we will have to agree to disagree on this, but I’d also like this to be the last comment on this thread about the military.

      • Alice Ryan

        Right on, Jesse. Well said!

    • 4Commencefiring4

      But by that logic, christians should flee every public educational institution, every employer that in any way contributes to gay causes, any retailer who does the same, on and on. Before long, the only thing we’d be left with is sitting home staring out the window.

      Then, when you got bored with that, you’d have to start checking out the management at Safeway or Sears: does anyone working there have a subscription to Playboy? Do they have a problem with booze? Are they swingers? We don’t want to contribute to that, so then…what?

      And if anyone in the church patronized those places, or held the coats of those who did, should they get the boot? At some point, you have to swim in the lake you’re tossed into, but you don’t have to drown in it.

      • 072591

        There is a difference between patronizing an organization that may have wicked people running it and patronizing a business that set out to promote wickedness. Should a retailer that contributes to homosexual causes be boycotted? I will not make that call for you, but it would not an absolute deal breaker for me. Now, a retailer that sees homosexual causes to be a major part of why they are there – a different story.

        But a Christian should NEVER be part of an organization that seeks to promote opposition to God – and make no mistake, America is doing that right now! The government has stated that promoting homosexuality is a priority for them.

        We do know from the Bible that God will not exercise judgment while His people are in harm’s way; I am suggesting that His people need to get out of the way so that the Lord can unleash His wrath.

    • Jim Aroyo

      America has no obligation to side with God according to your perception. If you believe in God, then do so.

  • Pingback: Summary of Responses to DOMA and Prop 8 Decisions | Josh Turansky()

  • doreen

    What homosexuals need to remember, is, that if it were not for heterosexuals, they would not be here.
    It takes a husband and wife for that to happen.

  • doreen

    What homosexuals seem to forget, is, that without, heterosexuals, they wouldn’t be here.

  • In reading your article, it feel eerily as if this were more a supernatural set of events. How else could this have occurred in our ‘current’ legal system? It brings me comfort to know that nothing happens that God does not allow. This is being worked out for His purpose and glory. While I am having a hard time wrapping my head around it … it is part of a bigger, sovereign plan.

  • josh

    If Christians really cared about more than just the word ‘marriage’, they would be more impassioned to preserve the frail state of marriage within their own institution. Divorce is apparently what God hates, but Christians don’t get worked up over that. I’m sorry but I think you need to fix divorce if you want to save your institution. Clean your own house and maybe you would have a foundation to stand on. Minimizing the issue to a lonely clerk only weakens your position and your argument.

    • I agree with the main point you make Josh. I’ll add this though: I hope you didn’t think that the reference to the clerk minimized what I was trying to say. It was meant to maximize the absurdity of it. Here are two posts that say this better than me:



    • William Butler

      Hey Josh,

      I think that the sexual revolution, the implementation of no-fault divorce, and the legalization of abortion on demand has done more to damage to American society than same-sex marriage ever will, so we are in basic agreement.

      That being said, same-sex marriage brings something completely new to the table, which is the infringement of our 1st Amendment religious liberty. No fault divorce and the sexual revolution were never a threat this before. Hence Christians have real skin in the game of issue. Otherwise they will soon find themselves in the same camp as KKK racists who are marginalized by an ever increasing hostile and authoritarian government who will dictate that they live contrary to their consciences.

      Finally, anyone who says “shut up and get your own house in order before lecturing us” should take a serious look in the mirror. In my view secularists should get THEIR own house in order about the openly nasty and intolerant attitudes they have against Christians before lecturing anyone else about being more “tolerant”.