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Pro-marriage Hope As Gay Debate Moves Toward Supreme Court

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World — In February, a three-judge panel of the 9th U.S. Circuit Court of Appeals struck down as unconstitutional California’s Proposition 8, a state constitutional amendment passed by voters that would have defined marriage as a union between one man and one woman. The 9th Circuit Tuesday refused to rehear the case.

In an interview Wednesday, Brian Brown, president of the National Organization for Marriage told me that, although the ruling is in one sense a setback, the end result could be very helpful as the case heads to the U.S. Supreme Court.

Were you surprised by the 9th Circuit’s decision to not rehear the case? The 9th Circuit is the most overturned circuit in the country, and obviously it has a very liberal bent, so the decision itself is not a big surprise. What is sort of a surprise is how strong the dissent was. [The three dissenting judges] basically say that the interpretation of the law put forward by the majority is completely outside the bounds of the clear legal history. I think that will be important as this goes to the U.S. Supreme Court.

Could you explain what the dissenting justice meant when he wrote that the majority made a “gross misapplication” of the law? The 9th Circuit tried to make a decision that they thought the Supreme Court would be more likely to uphold. As you know, the state Supreme Court forced same-sex marriage on California and then the people went to the ballot box and overturned that. But [the 9th Circuit] ended up in territory that makes no sense.

The 9th Circuit is basically saying, once the court decides, the law is a one-way street, and you can never overturn it. I don’t know many people of common sense that are going to accept such an interpretation. [The court also suggested that] same-sex couples are a special class and only animus would drive people to support marriage as between a man and a woman. It’s just so far beyond the pale I find it hard to believe that the Supreme Court is going to accept it.

How important is the upcoming presidential election in this battle? President Obama has come out in support of same-sex marriage. The mask is off, and who is on the Supreme Court is going to decide the future of marriage. I’m confident that President Obama would nominate justices that would undermine marriages and that Gov. Romney would nominate justices that would stick to the letter of the law. President Obama himself has made this [issue] a proxy for the election.

And we also have key marriage votes in four states—Maryland, Washington, Minnesota, and Maine—that are very important. Obama also needs to win in key swing states, like Florida, Ohio, and North Carolina, which just voted overwhelmingly to protect traditional marriage. I don’t see any other way to look at the 2012 election other than as a national referendum on same-sex marriage.

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