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.
During the Republican primaries, conventional wisdom held that it's all about the economy, so social issues should stay on the back burner. Will Romney, as the presumptive GOP nominee, give marriage enough attention? Gov. Romney was very forthright in signing our pledge, which calls for a federal marriage amendment. Obviously, given the huge economic problem our country faces, that's going to be an issue. But I believe candidates can walk and chew gum at the same time. I expect that we'll continue to get that strong support from Gov. Romney and that will make very clear in voters' minds that they've got a choice here. This issue will be a major part of President Obama being a one-term president.
What do you make of the polls that seem to indicate increasing public support for gay marriage? When voters address the issue directly in referenda they have so far always rejected it. The polls showing support for same-sex marriage are not worth the paper they're written on. In every single state where we've helped manage a constitutional amendment campaign, polls consistently underrepresented support for traditional marriage. On average it was by about 6 percent, sometimes a lot more. The polls suggested we were in jeopardy of losing North Carolina, yet 61 percent voted to protect marriage.
Many of these polls don't actually focus on voters, and secondly they use completely biased language. [For example, one question was], "Do you believe same-sex marriage should be illegal?" Well, "illegal" conjures up images of people being put in jail. If you ask the question point-blank, "Do you oppose or support same-sex marriage?" the majority of Americans oppose same-sex marriage.
If this is true, why do Democrats think talking about same-sex marriage is going to help them? People say, President Obama is very smart, and his team is very smart, why would they do this if there wasn't a reason? They must know more than we do. They don't. There is a cult of wishful thinking among Democrats. They were claiming at one point that we were going to lose Proposition 8 by 18 points [it passed with 52 percent]. And whenever there's a poll that buttresses what they believe, they trumpet it from the hills, but it's just not based in the electoral realities of the votes. And so that means that they make really big mistakes.
Same-sex marriage supporters often say that they are on the "right side of history." How does that influence the debate? Sun Tzu said that the best victory is the victory of the battle never fought. The notion is that if they continue to say that it's inevitable, then those of us who believe and know in our hearts that marriage is the union of a man and a woman will simply give up. I can say that I know that many of us will never give up. It's important that we explode that myth.
This is not evitable. This is in the hands of the citizens to decide. It's critical that people realize that we are continuing to win and that people get out and vote for the candidates that will support traditional marriage.