Republican presidential candidates Newt Gingrich, Mitt Romney and Rick Santorum blasted Tuesday’s ruling by the 9th U.S. Circuit Court of Appeals in San Francisco striking down California’s Proposition 8, which banned gay marriage.
“Court of Appeals overturning CA’s Prop 8 another example of an out of control judiciary. Let’s end judicial supremacy,” Gingrich tweeted shortly after the decision was handed down.
Romney slammed the ruling as unconstitutional in a statement.
“Today, unelected judges cast aside the will of the people of California who voted to protect traditional marriage,” Romney said. “This decision does not end this fight, and I expect it to go to the Supreme Court. That prospect underscores the vital importance of this election and the movement to preserve our values.
"I believe marriage is between a man and a woman and, as president, I will protect traditional marriage and appoint judges who interpret the Constitution as it is written and not according to their own politics and prejudices.”
Late Tuesday afternoon, the Gingrich campaign released a statement attacking the ruling.
"With today’s decision on marriage by the 9th Circuit, and the likely appeal to the Supreme Court, more and more Americans are being exposed to the radical overreach of federal judges and their continued assault on the Judeo-Christian foundations of the United States," Gingrich said.
"I was drawn back into public life by the 9th Circuit’s 2002 decision that held that the words 'under God' in the Pledge of Allegiance were unconstitutional. Today’s decision is one more example that the American people cannot rest until we restore the proper rule of the judicial branch and bring judges and the courts back under the Constitution.
"The Constitution of the United States begins with 'We the People;' it does not begin with 'We the Judges.” Federal judges need to take heed of that fact," the former House speaker said.
Later Tuesday night, Santorum released a statement making many of the same points as his rivals.
"Today's decision by the 9th Circuit is another in a long line of radical activist rulings by this rogue circuit — and it is precisely why I have called for that circuit to be abolished and split up. Marriage is defined and has always been defined as 'one man and one woman.' We simply cannot allow 50 different definitions of marriage.
"The people of California spoke clearly at the ballot box that they wanted marriage defined in the traditional manner of one man and one woman. And for a court, any court, to usurp the power and will of the people in this manner on an issue this fundamental to the foundation of our society is wrong," Santorum said.
"We need to have a Judicial Branch that acts within its Constitutional bounds."
They were joined by other leading conservatives who have supported California’s gay-marriage ban. Two other candidates, Rick Santorum and Ron Paul, had not released statements heading into Tuesday night's caucuses and primaries in Minnesota, Colorado and Missouri.
Andy Pugno, general counsel for the ProtectMarriage.com coalition, the official proponents of Proposition 8, said he would "immediately" appeal the ruling. That likely would cause the verdict to be further stayed.
"Ever since the beginning of this case, we've known that the battle to preserve traditional marriage will ultimately be won or lost not here, but rather in the U.S. Supreme Court," Pugno said in a statement. "We are confident that the rights of California voters will finally win out."
Another opponent of same-sex marriage, Family Research Council President Tony Perkins, said in a statement that the decision "was disappointing but not surprising, coming from the most liberal circuit court in the country." He added that the ruling "is not about constitutional governance but the insistence of a group of activists to force their will on their fellow citizens."
But the lawyers who won the appeals court round called the decision a milestone, and outside City Hall in San Francisco, a center for gay rights, dozens of same-sex couples hugged and kissed in public, cheering the ruling.
"It means we are included in the American Dream," said Joe Capley-Alfano, who married his husband, Frank, in the summer of 2008, a window of legal same-sex marriage in California.
The majority in the 2-1 decision by the 9th U.S. Circuit Court of Appeals ruled that California's Proposition 8 ban did not further "responsible procreation," which was at the heart of the argument by the ban's supporters.
"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships as inferior to those of opposite-sex couples," the ruling reads.
But the appeals court did not address whether marriage was a fundamental right available to same-sex couples as well as heterosexuals, focusing instead specifically on Prop 8.
Some lawyers predicted that the narrow ruling would lead the Supreme Court to limit itself to deciding on the California measure or to refusing the case altogether.
Gay-rights supporters have traveled a bumpy road since the first legal U.S. gay marriage was conducted in Massachusetts in 2004. Some courts and legislatures have extended those rights, but voters have consistently opposed gay marriage.
California, the most populous state, joined the vast majority of U.S. states in outlawing same-sex marriage in 2008, when voters passed the ban known as Proposition 8.
That socially conservative vote by a state more known for hippies and Hollywood was seen as a watershed by both sides of the so-called culture wars, and two gay couples responded by filing the legal challenge currently making its way through the federal courts.
A federal judge in San Francisco struck down Proposition 8 in 2010, and gay marriage opponents appealed that ruling to the 9th U.S. Circuit Court of Appeals.
Opponents of gay marriage have not decided whether to ask a larger 9th Circuit panel to hear the matter, or appeal directly to the Supreme Court, Pugno, the ProtectMarriage.com lawyer, said by email.
Court rules allow at least two weeks before a ruling takes effect, so same-sex marriages cannot immediately resume in California, court spokesman Dave Madden said.
In the ruling, Judge Stephen Reinhardt focused on the unique circumstances of Prop 8 in California, and whether voters had a legally valid reason for passing it.
Backers of Prop 8 had said that it would advance better child-rearing, but Reinhardt said the only effect of the measure was to deny same-sex couples the right to describe their relationship as a "marriage."
"Proposition 8 therefore could not have been enacted to advance California's interest in childrearing or responsible procreation," he wrote, "for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples."
Judge Michael Daly Hawkins joined Reinhardt's opinion, while Judge N. Randy Smith dissented from the main constitutional findings. Hawkins and Reinhardt were appointed by Democrats, and Smith by a Republican.
"The optimal parenting rationale could conceivably be a legitimate governmental interest" for passing the gay marriage ban, wrote Smith. "I cannot conclude that Proposition 8 is 'wholly irrelevant' to any legitimate governmental interests."
Ted Boutrous, a lawyer on the anti-Prop 8 team, said at a news conference that the focus on California's specific circumstances might lead the Supreme Court to avoid the case.
"The way the court wrote the decision will make it that much harder for the proponents to get Supreme Court review," he said.
But Jesse Choper, a University of California, Berkeley, constitutional law professor, disagreed that the ruling would affect whether the high court took the case. However, the Supreme Court justices also might prefer a chance to limit any ruling to California, he said.
About 40 of the 50 U.S. states had outlawed gay marriage before a California state court ruled in 2008 that a ban was unconstitutional, leading to a summer of gay marriages. But California voters that November decided to change the state constitution to limit marriage to a man and woman.
That provoked some gay-rights activists to take a matter that had been waged on a state-by-state basis to federal court, essentially staking the entire agenda on one case.
The U.S. Supreme Court is seen as a more conservative body than the lower courts that have been considering the case. Should the high court eventually decide to hear the case, much may depend on Anthony Kennedy, a Republican-appointed justice who has written important pro-gay-rights decisions but has not explicitly endorsed gay marriage.
Six states — New York, Massachusetts, Connecticut, Vermont, New Hampshire and Iowa — allow gay marriage, as does Washington, D.C. In addition, about 18,000 same-sex couples were married in California during the summer of legalization in 2008, and their unions are valid regardless of the outcome of the Prop 8 case.
New Jersey, Maryland and Washington state are considering legislation to legalize same-sex marriage, and gay-rights activists in Maine say they plan to bring the issue to voters in a referendum in that state.
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