Martin Knight at RedState suggests that marriage defenders in California not put too much faith in the judicial appeal process to save Proposition 8, and advises a different course of action:
My recommendation, unless otherwise prevented by the California Constitution is for marriage proponents to mount up another campaign to get another Amendment proposition on the ballot as soon as possible before Perry v. Schwarzenegger makes its way to the Supreme Court.
This time, they should word the Amendment specifically to address Judge Walker’s “findings of fact.” Most especially his “finding of fact” that basically declares that children have no bearing on the institution of marriage.
As I’ve maintained over and over on RedState, the only way a court can mandate a states to recognize same-sex marriages is by discounting the central role children play as the raison d’etre of institution i.e. to tie a man to his offspring and their mother to provide the most stable and sustaining environment in which to raise them. The fact is that the decoupling of procreation with marriage within many inner city communities is perhaps the primary cause of the devastation one finds there.
Ultimately though, once the role of children is discounted, there is simply no valid reason why any state would refuse an incestuous couple i.e. brother-sister, mother-son, father-daughter, father-son, sister-sister, mother-daughter, etc. who are both consenting adults a marriage license.
I therefore recommend marriage proponents in California quickly get another Proposition on the ballot and this time make sure to add the provision against incest, and an explicit whereas statement […] I submit that it would be one hell of a task for any judge to claim that children are irrelevant to marriage so gays should be allowed to marry while siblings should not be allowed to marry because their children could have genetic abnormalities.
Another twist of the Gordian Knot would be that the judge would be forced by necessity to address the issue of same-sex siblings who want to marry. They cannot have children so there is no reason to deny them a marriage license – which incidentally would bump up against the 14th Amendment.
Good idea. Regardless of how right he is on the details, conservatives should absolutely know better than to put all their hopes in a single strategy. We have to fight this on multiple fronts: judicial, constitutionally in California, and yes, constitutionally at the federal level.