How to Revive Prop. 8? Do It Again

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.

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Defending Marriage: What Comes Next?

With another judge attacking marriage in California, the next question is where we go from here. Higher courts will review the decision, of course, but whatever they decide, you can be sure the legal challenges to state marriage definitions will keep coming. It’s difficult to see how true marriage and the will of the people can be secure without a constitutional amendment of some sort, whether it’s an outright national definition of marriage or a man-woman union or simply language revoking the judiciary’s right to address the matter.

How plausible is either scenario? More so than you might think. According to the National Conference of State Legislatures, 41 states currently preserve marriage legislatively, and 30 have put it directly in their constitutions. So public support is already a good chunk of the way to the 38-state threshold that would be necessary to ratify an amendment to the Constitution, and an increased perception that the courts won’t let the people make their own decisions (which may be fueled not only by this, but also by the feds suing Arizona and potential copycats, as well as legal battles over individual healthcare mandates) could be enough to push them the rest of the way.

Ironically, the biggest wild card I see is the likelihood of the Republican establishment running away from the issue out of perceived political expediency. We can always count on the GOP to pull defeat from the jaws of victory…