California’s Same-Sex-Marriage Trial

This case could end up being the Roe v. Wade of the same-sex “marriage” debate in our culture, the Baptist Press reports. Two homosexual couples are challenging the constitutionality of California’s Proposition 8, which bans gay “marriage” and which Californians passed with a majority vote in 2008. The plaintiffs argue that their 14th amendment right to “equal protection under the law” is being violated by Proposition 8.

The New York Times reports about the first day of the trial, and a Baptist Press report implies that the California judge is likely to rule in favor of the plaintiffs. The case is likely to go all the way to the Supreme Court, which could declare unconstitutional all state laws banning gay “marriage.” Sound familiar? That’s why the case is billed as the Roe v. Wade of gay “marriage.” This will be one to watch.


  • David Vinzant

    As the Baptist Press article states: “The case, Perry v. Schwarzenegger, was filed on behalf of two homosexual couples in May by Ted Olson and David Boies, the two attorneys who reached national prominence in 2000 when they represented George W. Bush and Al Gore, respectively, in Bush v. Gore.”

    I strongly encourage conservatives to read about why a fellow conservative such as Theodore Olson strongly supports same-sex marriage. He was Bush’s solicitor general and is known also for the fact that his wife was aboard one of the planes that struck the World Trade Center on September 11, 2001.

    You can read about Olson in this article:

    “A Conservative’s Road to Same-Sex Marriage Advocacy”


  • Michael Metts

    Why do we have a legislative branch? Judicial activism has no counter-balance in our government. These activists have an agenda of their own and not one that the philosophy of judicial activism was intended to serve, which is to go beyond constitutional authority to keep up with current culture. But culture has clearly demonstrated a rejection of homosexual marriage — everywhere its been tried it has failed. It would take this sort of activism to force public recognition of this kind of marriage. Its lawless.

  • Nathan

    I don’t see abortion and same sex marriage in the same category at all.

    There are plenty of sins that are legalized. Banning gay marriage is more like banning professional football games (and all other work) on the Sabbath. It is also like banning a religion that doesn’t have the true God of the Bible first and foremost.

    Where should the morality police draw the line?

  • Ryan K.


    I think your a missing the thesis of Denny’s post and its importance. The nuance maybe requires a little bit more familiarity with judicial procedure.

    Denny’s point is that this case could establish precedent (the key word here) on gay marriage, the way Roe v. Wade did with abortion. Notice he is not comparing in a moral police fashion (to use your term) abortion and gay marriage; he is simply highlighting that once courts establish precedent on a matter it tends to function as settled law from then on out.

    I only point all of this out to you, so you can conserve all that energy of going after those who morally differ from you, for situations in which it is actually the point.

  • Johntriadekaexi

    Forgive my impertinence, but what is the difference between a homosexual and a homosexualist ( a heterosexual who promotes the movement of homosexuality) in the eyes of God?

  • Nathan

    @Ryan —

    I didn’t miss the so-called nuance. It isn’t a leap to think Burk’s position is based more on an anti-gay bias than on a heartfelt belief in judicial restraint. So, I believe there is more to this comparison between legalizing murder and legalizing gay marriage than just jurisprudence.

    The comparisons that I made in my comment were fair and the question is legitimate. If someone supports a legal ban on something, it makes sense to probe for reasons and question inconsistencies.

  • Ryan K.

    It is a leap Nathan and your simply infering something that is not written. Why try to read in to Denny’ comments what is not there. Might be helpful to be more charitable.

  • Nate

    Nathan said: “Where should the morality police draw the line?”

    Okay, then tell us. And when you draw the line and someone else disagrees with you, what will be the substance of your argument to keep the line where you want it?

    We live in a country that gives States and citizens the ability to put to vote issues like this. Judicial Activists believe that the people never make appropriate decisions. That, by the way, is why Roe v. Wade is the most notorious Supreme Court Ruling since Dred Scott.

    So construct your argment, draw your line, and then expect others to take it even further. However, based on the logic you have already presented, you will never be able to stop moving the line.

  • Darius T


    The homosexualist is actually more sinful than the homosexual. Jesus repeatedly said it was more spiritually dangerous to cause people to sin or call evil good than to actually sin. Of course, it won’t matter for either if they don’t turn to Christ.

  • Nathan

    To me, the case is very clear — a simple summary of what laws should and should not do and how that applies to gay marriage:

    Laws are needed to protect the right to life, liberty and the pursuit of happiness.

    Regarding gay marriage:

    Life — no life is in danger if we allow or disallow gay marriage
    Liberty — disallowing gay marriage is preventing liberty
    Pursuit of happiness — disallowing gay marriage is preventing some the pursuit of happiness

    Laws are also needed to balance everyone’s right to life, liberty and the pursuit of happiness.

    Regarding gay marriage:

    Life — no life is in danger if we allow or disallow gay marriage
    Liberty — If gay marriage were allowed, the liberty of the people not involved in gay marriage would not be diminished.
    Pursuit of happiness — If gay marriage were allowed, the right to the pursuit of happiness of the people not involved in gay marriage would not be diminished.


    There is a zeal to make / keep the United States a Christian nation, but the only way for that to happen is from the bottom up, not the top down. No one can be forced to be a Christian, and being forced to act like one doesn’t do one much good either, in the light of eternity.

    There are a 100-billion ways for people to sin that we legally allow and we think the freedom to do that sin is a great thing. A major American premise is the freedom of religion — which if you use that freedom to opt out of the true Christian religion, you’ve broken God’s first and greatest commandment on which hangs major components of, if not the entire, Christian faith, no?

    Why be so appalled when someone takes the freedom of religion to follow an unchristian god into things that are unchristian?

  • Darius T

    Nathan, exactly how is it preventing liberty to disallow gay marriage? All are equally treated by a law that defines marriage as between a man and a woman. No one is treated special. Furthermore, gays can do whatever they want in the privacy of their homes and communities… they can’t, just as polygamists cannot, force their vice onto society.

  • Darius T

    “disallowing gay marriage is preventing some the pursuit of happiness”

    You’ve got to be kidding me. For one, there is NO happiness to be had in a homosexual relationship. But leaving that fact aside, how is keeping marriage defined as it has been throughout the history of the world keeping people from their supposed happiness? They can still do whatever they want in their bedrooms (which is significantly more freedom for them than much of recent human history), they can still privately marry whomever they choose (I could marry an aardvark right this minute and call it my wife and I would be perfectly free to do so), they can still pursue happiness PRIVATELY as much as they choose. The pursuit of happiness idea has its limits… you might want to come to understand what that phrase means before throwing it out so foolishly.

    “No one can be forced to be a Christian, and being forced to act like one doesn’t do one much good either…”

    No offense, but this is downright stupid. No one is being “forced to act like a Christian.” Last time I checked, all the of states where gay marriage isn’t allowed, homosexual behavior is still very much legal.

  • Michael Metts

    The nature of marriage is intimately associated, not necessarily just with liberty, but with society and norms. Marriage is defined within and by a society — especially in a rights-based culture (i.e., in the USA). Judicial activism here (if the homosexual agenda is realized) would be defining the institution of marriage by what our society as a whole rejects, transgressing our society’s obvious traditional norms and values (cf. failed gay marriage initiatives nationwide). This changes the entire notion of marriage as a sociologically defined institution (i.e., defined by society) into an institution that is now defined by a very few privileged individuals known as justices.

  • Nathan

    @Michael —

    Regarding the issue of checks and balances.

    What are the checks and balances for the judiciary? Do they exist? Do they work? If not, then I think you need to argue for enforceable rules for the judges themselves rather than bemoan judicial decisions.

    If no legal way exists to force a judge to decide something based on some original intent, then the judge is truly acting within his or her legal bounds. Perhaps the forefathers missed something or maybe they intended to allow the so-called judicial activism, so we shouldn’t argue against it. . .

    For those that don’t like certain judicial decisions:

    *If the decision is illegal, then enforce the law to reverse the decision.
    *If the decision is inappropriate, then use a check to balance their power-grab.
    *If neither an enforceable law nor a check exists, then create them.

  • Nathan

    * Ozzie and Harry would be happier if they could file a tax return with a married filing jointly status.

    * Ingrid would have been happier to be with Roberta when she died — rather than in a waiting room not being able to give comfort to and say goodbye to her partner of 20+ years.

    * Would you be less happy if you were forbidden to marry the person that you are married to? (Assuming from the miniscule picture that you are married)

    So, there are some things that only come with marriage that can give happiness.

    Let’s move your argument from the heated topic of homosexuality.

    Let’s say that tax status for a church is contingent on being diverse — a church can have a non-profit tax status only if the memberships is 1/2 men and 1/2 women.

    This law doesn’t discriminate. No church is excluded from getting the favorable tax treatment — all churches are free to have a 50/50 split.

    If your church isn’t 50/50, you can still call yourself a non-profit, you can still be a congregation in the privacy of your own church building. You can pursue your church endeavors to your heart’s content — PRIVATELY.

    Just don’t ask the rest of society to endorse it by giving the organization a tax-exempt status or by wasting judicial resources by sorting through the drama — we have to spend those resources when the 50/50 churches split up.

    I don’t think you would like it if your church was required by law to meet some government-sanctioned quota, and had numerous rights withheld because it didn’t meet the government standard of what “church” should be.

    Where does government tell society what church is?

  • Nathan

    Thank you, David, for posting the link. Great article!

    This quotation from the article is particulary juicy:

    “When we refuse to accord this status to gays and lesbians, we discourage them from forming the same relationships we encourage for others. And we are also telling them, those who love them, and society as a whole that their relationships are less worthy, less legitimate, less permanent, and less valued. We demean their relationships and we demean them as individuals. I cannot imagine how we benefit as a society by doing so.

    I wonder how people here respond to this quotation and other points in the article…

  • Darius T

    I can imagine how we benefit as a society by demeaning perverse behavior… but that’s just me. By Olson’s pathetic logic, he also cannot imagine how it would benefit society to demean polygamists and pedophiles. I pity the children who have to grow up today listening to this garbage. It may be a lot of things, but it’s definitely NOT a conservative case.

  • Nathan

    What makes homosexuality perverse? In other words, what is the definition of perverse, and why isn’t you and your marriage and your sexuality and your kids not included? Oh, I know, you get to define it for everyone and that means that you draw the circle of “not perverse” such that you and yours are included…

    Btw, I’m not insinuating that you or your family are peverse…

  • Darius T

    First God defines, but if that’s not enough, basic human anatomy and human history backs that up. I suppose to you, everyone should be their own god and decide right from wrong.

    It’s perverse just as lying, adultery, or stealing is perverse. That doesn’t mean we demean the individual, but that we call it evil when it’s evil. And it’s not in the best interest of a society to start calling good that which is bad. We already do it with abortion and materialism… let’s not add homosexuality to that list anymore than it already is.

    This is just a bizarre conversation… that someone could even ask “what makes homosexuality perverse?” is so dumbfounding.

  • Sue


    I might have agreed with you a few years ago. But now I realise that some homosexuals are happy together and many heterosexuals are not.

    I also read some of Robert George’s <a href="http://powerscourt.blogspot.com/2010/01/robert-george-and-manhatten-declaration.html"book the subject" and I can honestly say that I had never read anything as perverse before.

    (That we find something personally distasteful is neither here nor there.) If there is no better argument against homosexuality than Robert George makes, the case will be lost, particularly on women.

  • Sue


    It may not be a happiness that lasts in heaven. That’s true. But most heerosexual marriages don’t give that either.

    I live in a place where there is same sex marriage. This has been a huge shift in thinking for me. I actually know couples who are more stable, and happier than the married couples I know.

    Okay, they have only been together for about ten to twenty years. I don’t know any older same sex couples, just by chance, but of the ones I do know, some are crazy obnoxious and some are absolutely lovely people, just like the heterosexual couples I know.

    I think once one actually admits that marriage itself is not a sacrament, and is really absolute hell for a certain part of the population anyway, then it isn’t such an issue.

    IMO, all marriages that encorporate a differential in authority are sinful because we do not accept somone in authority courting someone directly under their authority. This is against our civil beliefs about marriage. To me, this makes authoritarian marriages sinful. I would like to make this kind of marriage illegal if I could. But I can’t. I accept that.

    It is strongly against my personal belief system that a relationship in which one person has authority over another person be called a “marriage”. Will the law acccomodate me in this?

  • Nathan


    You missed the point of the question: Why do YOU get to define what is and is not perverse for an entire nation.

    There is more to sex than anatomy. What do you get from sex emotionally? Homosexuals have to “make do” with the anatomical “difficulties,” so you get to force them into emotional incompatable relationships, too?!

    Hiding behind a heritage of bigotry is not a defense for hetero-only marriage in a country that holds FREEDOM as a top priority.

    Again: Abortion and homosexuality are in completely different moral categories. Both may be sin, but each have a different impact (if any) on the people directly involved and the nation at large.

  • Brian Krieger

    Darius is right that within a biblical framework, homosexual acts are perverse. Outside of a biblical framework, the definition gets more slippery, but currently it still would fall under “perverse”:
    Obstinate in opposing what is right, reasonable or accepted

    Right and reasonable are utterly arbitrary and wind up collapsing into accepted anyway. So, for now, given the public speaking on homosexual marriage, it is not seen as accepted (or right or reasonable). Hence, calling it “perverse” would, currently, be correct.

    Now, with time, I think that will change. But that’s the catch. It’s just time, it’s just the winds of public. Without an absolute standard, everything falls to whatever and whoever can “OK” what they want. Or, might makes right. From a non-Christian stance, it’s just a changing time that will, I think (to the detriment of the culture) succumb to the immorality and sin of homosexuality. I find that heartbreaking, but men love the darkness.

    From a Christian perspective, we can speak on what is asked of us from a biblical construct. Our true reasoning should always fall upon what gives God glory. In this case, we can’t support something that is expressly condemned in the bible. Even using medical reasoning against one sin or another will eventually fail (e.g. STD’s may be an argument to remain chaste in your marriage, but eventually medical science may come up with treatments or cures). Using statistics will fail as time has shown that statistics can be had to support nearly anything (eventually).

  • Brian Krieger

    Sue, your approach seems to be to drink deeply of the cistern of culture and go with our feelings, our heart, our emotions and reason based on anecdotal experience/evidence. That’s very counter to what the bible teaches.

  • Sue


    I love it! This is hilarious actually. There is such a difference in perspective. I studied almost exclusively ancient languages, I teach special need children, I don’t watch TV or very many movies.

    You must realize that I see those who stick to a rigid and narrow conception of gender as people who are steeped in TV, sports, Hollywood, twitter, and so on.

    I think that this manhood belief is a very secular, sports bound, recent, modernistic and peculiar kind of thing, that has nothing to do with historic Christianity. Just how long a history does “sports as a primary focus” have in Christianity anyway?

    I don’t mean to be unkind, but I was raised in an old fashioned Christianity that did not associate with “the world” novels, TV, radio, sports, movies or anything at all of this ilk.

    Men can be anything they like as far as I am concerned, but you can’t pull the wool over my eyes and pretend that the masculinity of this era is holier than any other definition of masculinity.

  • Brian Krieger

    Interesting Sue. Very enlightening, too. So, then, with your second line, you are saying that you stereotype anyone who doesn’t fit your existential there is no truth construct. Fair enough.

    I don’t know how the manhood question came into play on this. We were discussing homosexuality and the very specific condemnation in the bible. Just so that I’m not returning talking past you, I was referring to your apparent rejection of biblical condemnation of homosexuality (which has nothing to do with manhood or sports, but that’s a different story):

    I live in a place where there is same sex marriage. This has been a huge shift in thinking for me.

    Also based on your comments in previous notes, I made the (perhaps incorrect) connection that you support homosexuality (just to be inclusive here, man or woman) as an act/lifestyle/etc. that lines up with God’s word. If I am mistaken, let me know.

    Regarding culture, TV, sports and twitter, that’s not the only aspects of culture (BTW, I don’t twitter, rarely watch TV/movies, but do play sports….when my knee is healthy, that is…). Culture is what informs you. So, as an example, your view on homosexuality is shaped by the environment (culture) around you: I actually know couples who are more stable, and happier than the married couples I know. That has nothing to do with Hollywood, etc. (though, indirectly, the way those around us are informed and swayed by the winds of culture wind up swaying and informing us when we are drifting along aimlessly without a bible-centric view).

  • Brian Krieger

    I am very saddened by the low view of marriage (and apparent abandoning of gender) but it truly breaks my heart to think of what caused such bitterness and resentment. My prayers go out for you and for those who hurt you. Not that these black and white words on a digital screen offer anything remotely leaning towards solace, mind you, I know. Only Christ gives that kind of peace. But my heart weeps with and for you.

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