The Prop 8 Decision: Having It Both Ways

Judge Vaughan Walker, the chief district judge of the US District Court for the Northern District of California, handed down his post-trial decision yesterday in Perry v. Schwarzenegger, holding that Proposition 8 – the referendum approved by California voters in 2008, amending the California Constitution to define marriage as between a man and a woman and thus deny recognition to same-sex “marriages” – violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the federal Constitution. In a larger sense, the lawsuit, seeking to overturn judicially a status quo that has existed for essentially all of human history and was only recently reaffirmed by the California electorate, is yet more proof that it’s not conservatives who are on the offensive in the ‘culture wars’. But even focusing on the judicial process, and setting to one side its reliance on the oxymoronic concept of “substantive due process,” Judge Walker’s decision is fundamentally flawed in three ways, two of which represent failures of reasoning and the third of which highlights the structural problem with substituting judicial “factfinding” for the collected judgment of a democratic electorate. Specifically:
(1) Judge Walker’s decision is internally, logically inconsistent in its treatment of the worth of cultural values, arguing that morality and tradition are not a valid basis for supporting the legal status of marriage, but at the same time finding a Constitutional violation from the fact that the same-sex alternative (domestic partnerships) lacks the social and cultural status that marriage has…and which it derives from its grounding in longstanding moral, cultural and religious traditions;
(2) Judge Walker’s decision ignores the compelling state interest in promoting childbearing and childrearing within the context of opposite-sex marriage, and the absence of such an interest in same-sex marriage, specifically ignoring the fact that heterosexual relationships produce many more children than homosexual relationships; and
(3) the whole idea of leaving core judgments about a society’s most central and longstanding values to a single judge rather than respect the collective wisdom of a diverse electorate is fundamentally anti-democratic.
Let’s review these one at a time.

Refresher: The Legal Posture
To recap for the non-lawyers or those who haven’t followed the case, Judge Walker conducted a trial and issued a 138-page decision that included both “Findings of Fact,” i.e., his conclusions of what the evidence showed, and “Conclusions of Law,” i.e., the legal impact of those facts under federal law. The decision can be appealed to the US Court of Appeals for the Ninth Circuit, and from there to the US Supreme Court. Because Proposition 8 amended the California Constitution, there was no opportunity to resolve the case under state law; either Proposition 8 violates federal law, or it is valid. California has a fairly broad-reaching “domestic partnership” law that gives many of the legal benefits of marriage to same-sex couples, so the plaintiffs in Perry had to argue mainly that not using the term “marriage” was itself improper discrimination banned by the Fourteenth Amendment.
Under the Supreme Court’s controversial 1996 decision in Romer v Evans, authored by Justice Kennedy, current federal law subjects a state constitutional amendment passed by referendum to the same three-tiered structure of Fourteenth Amendment review as any other state statute. The highest tier of that review, “strict scrutiny,” applies when a state draws distinctions on the basis of some suspect classification such as race, or burdens a right deemed “fundamental” by the courts; the lowest level, generally applied to most types of legislation, is “rational basis” review, which at least in theory is supposed to uphold any law that has any arguably sane basis whatsoever. The Supreme Court has never held that distinctions on the basis of sexual orientation trigger strict scrutiny, and thus while Judge Walker tiptoes around the concept, his decision is principally aimed at arguing that putting a separate and distinct value on traditional, opposite-sex marriage is insane and irrational. As Judge Walker properly stated the standard:

The court defers to legislative (or in this case, popular) judgment if there is at least a debatable question whether the underlying basis for the classification is rational…Most laws subject to rational basis easily survive equal protection review, because a legitimate reason can nearly always be found for treating different groups in an unequal manner.

(p. 118, 119).
(1) What Value Culture?
Judge Walker conceded the obvious: “The evidence at trial shows that marriage in the United States traditionally has not been open to same-sex couples.” (p.112). He nonetheless insisted that Prop 8 infringed the “fundamental right to marry,” (p. 117) claiming that “Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as ‘the right to same-sex marriage’ would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy – namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.” (p. 114). This is classic question-begging, as the entire point of Prop 8 is to define what is and is not marriage, and he’s just admitted that same-sex relationships have traditionally not been defined as marriage.
Seeking to characterize a rule that has existed throughout history as insane, Judge Walker first engaged in a sort of pop evolutionary history:

The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry…Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.

(p112) But to open a quarrel with the past, in Churchill’s turn of phrase, is not sufficient; given the deep roots of traditional marriage in nearly every aspect of our society and history, Judge Walker must find a way to categorically exclude those considerations:

Tradition alone…cannot form a rational basis for a law….The “ancient lineage” of a classification does not make it rational….Rather, the state must have an interest apart from the fact of the tradition itself….
Proponents’ argument that tradition prefers opposite-sex couples to same-sex couples equates to the notion that opposite-sex relationships are simply better than same-sex relationships. Tradition alone cannot legitimate this purported interest….
The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples.
What is left is evidence that Proposition 8 enacts a moral view that there is something “wrong” with same-sex couples….The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples….
Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.

(p. 124-26, 130, 135)
As I have explained before, the reason for valuing tradition is the same as the reason for valuing democracy, free markets and the rule of written law: because each embodies the experience and wisdom of the largest number of people in making decisions, and learning the consequences. Tradition is not stasis; it is experimentation verified or abandoned through trial and error But what is striking about Judge Walker’s opinion is that while he rejects utterly the value of cultural and moral tradition, his entire basis for finding a constitutional injury in the first place is the very fact of the cultural weight that experience, tradition and morality have given to marriage. First, from his findings of fact:

52. Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States…
54. The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships…
77. Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.

From this, he concluded:

The evidence shows that domestic partnerships do not fulfill California’s due process obligation to plaintiffs for two reasons. First, domestic partnerships are distinct from marriage and do not provide the same social meaning as marriage…Second, domestic partnerships were created specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples…
A domestic partnership is not a marriage; while domestic partnerships offer same-sex couples almost all of the rights and responsibilities associated with marriage, the evidence shows that the withholding of the designation “marriage” significantly disadvantages plaintiffs…the record reflects that marriage is a culturally superior status compared to a domestic partnership…California does not meet its due process obligation to allow plaintiffs to marry by offering them a substitute and inferior institution that denies marriage to same sex couples…
[P]roponents do not assert that the availability of domestic partnerships satisfies plaintiffs’ fundamental right to marry; proponents stipulated that “[t]here is a significant symbolic disparity between domestic partnership and marriage.”

(p. 115-16). Suddenly the “social meaning” and “cultural meaning” and “status” of marriage is not irrelevant, but essential. This is what economists call free riding: traditional marriage gains social and cultural significance by long experience and association with moral, religious and cultural norms – and yet it is constitutionally improper to deny the same status to an institution that doesn’t comply with those norms. Judge Walker puts the culture on one side of the scale while lifting it off the other, which may be many things but surely is not equal justice under law. It’s this analysis, not the view of the California electorate, that fails the test of basic rationality.
This analysis also reveals why this is not, as some would have it, a libertarian, live-and-let-live decision at all. No liberty is at stake here, in the sense of preserving some activity from government sanction, and indeed few if any of the rights of property and contract are denied to domestic partners in California. Instead, what the plaintiffs in Perry seek is the government to help them obtain the affirmative social and cultural approval of their neighbors.
(2) Marriage and Children
Judge Walker also found insufficient the entirely rational proposition that society values traditional marriage because of its blindingly obvious relationship with the bearing and begetting of children:

The court asked the parties to identify a difference between heterosexuals and homosexuals that the government might fairly need to take into account when crafting legislation…Proponents pointed only to a difference between samesex couples (who are incapable through sexual intercourse of producing offspring biologically related to both parties) and opposite-sex couples (some of whom are capable through sexual intercourse of producing such offspring)…Proponents did not, however, advance any reason why the government may use sexual orientation as a proxy for fertility or why the government may need to take into account fertility when legislating…No evidence at trial illuminated distinctions among lesbians, gay men and heterosexuals amounting to “real and undeniable differences” that the government might need to take into account in legislating…
Even if California had an interest in preferring opposite-sex parents to same-sex parents – and the evidence plainly shows that California does not – Proposition 8 is not rationally related to that interest, because Proposition 8 does not affect who can or should become a parent under California law…To the extent California has an interest in encouraging sexual activity to occur within marriage (a debatable proposition in light of Lawrence, 539 US at 571) the evidence shows Proposition 8 to be detrimental to that interest. Because of Proposition 8, same-sex couples are not permitted to engage in sexual activity within marriage…Domestic partnerships, in which sexual activity is apparently expected, are separate from marriage and thus codify California’s encouragement of non-marital sexual activity…To the extent proponents seek to encourage a norm that sexual activity occur within marriage to ensure that reproduction occur within stable households, Proposition 8 discourages that norm because it requires some sexual activity and child-bearing and child-rearing to occur outside marriage.

(p. 121-22, 128). The screamingly obvious fact that Judge Walker’s legal analysis ignores is right there at #49 on his list of findings of fact:

49. California law permits and encourages gays and lesbians to become parents through adoption, foster parenting or assistive reproductive technology. Approximately eighteen percent of same-sex couples in California are raising children.

Now, I don’t have the numbers handy here, but I’d bet every penny I have that very significantly more than 18% of opposite-sex married couples, even in California, have children. And if you looked at the numbers, it’s likely the disparity would be even larger if you counted by number of children rather than number of households, as for a variety of reasons (including religious and cultural beliefs and just enjoying the baby-making process), opposite-sex couples are far more likely to have families of three or more children.
Remember that laws routinely pass rational basis review without a 100% fit between means and ends (almost nothing would be left of the New Deal and Great Society otherwise) – the government is very much permitted to draw distinctions based on probabilities and incentives. The mere fact that some same-sex couples bear children and others adopt them, while some opposite-sex couples do neither, doesn’t change the basic fact that opposite-sex relationships are overwhelmingly more likely to produce children.
To use a hypothetical I’ve used before, let’s say that you’re an investor in a new planned community, to be started from scratch in a part of the country that presently has little population. And let’s further suppose that, based on the mix of businesses you are hoping to attract to your planned community, your consultants and investment bankers inform you that the economic assumptions of the project require that a fairly large proportion of the new residents be families with children. And, finally, let’s suppose that you had a finite budget for advertising and sales, and that budget included a deal with an airline to bring in, say, 500 prospective residents at little or no cost to inspect the place. It doesn’t matter what your agenda or your biases are – acting out of pure rational economic self-interest, wouldn’t you very strongly prefer that the 500 seats went to opposite-sex married couples? Aren’t they very obviously the people most likely to produce children in general, and multiple-child families in particular? Is it really so irrational to believe that a set of 250 opposite-sex married couples would, in almost any conceivable circumstance, produce more children than 250 same-sex married couples of the same age and socioeconomic background? If that isn’t a rational conclusion for government to draw, there are precious few of the conclusions supporting any legislation that will withstand scrutiny.
Judge Walker’s “fertility” analysis is off-base in a number of other ways that I explored at much greater length in my 2005 essay on this topic. First, the government absolutely does have an interest in ensuring that there is a next generation; not only does economic growth require a growing population, but the fiscal stability of government becomes ever more dependent on a growing population the more it creates presently unfunded liabilities to future retirees. Anyone vaguely familiar with the position of public pensions in California can tell you why the state will need more taxpayers 25 years from now.
Second, just because Lawrence v. Texas limited the state’s power to prevent some types of sexual activity outside of marriage doesn’t change the fact that the state absolutely has an interest in encouraging sex to occur within marriage, and that interest is vastly greater when it is procreative sex. To be blunt, gay sex does not lead to illegitimacy or abortion – and thus the state’s interest in the subject is less vital.
(3) Here, The People Do Not Rule
The third problem with the Perry decision goes beyond Judge Walker’s analysis, but it starts with the procedural status of the case. As you can see from the preceding discussion, Judge Walker heard evidence and reached conclusions of “fact,” which at least in theory will be given deference on appeal as if he was a jury deciding who killed Nicole Simpson. That’s why getting a sympathetic judge can be so important in a case like this, and naturally these plaintiffs filed this case in a district in which Judge Walker was the chief judge and assigned the case to himself – a different judge or a different district might have meant different “facts.” And his decision is full of sweeping generalizations, both “fact” and inference from fact, that might not be universally uncontroversial:

71. Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted….
Plaintiffs presented evidence at trial sufficient to rebut any claim that marriage for same-sex couples amounts to a sweeping social change…
Indeed, proponents presented no reliable evidence that allowing same-sex couples to marry will have any negative effects on society or on the institution of marriage…
The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal.

(p. 125-26, 132) Defenders of Judge Walker’s ruling will undoubtedly argue that these are perfectly reasonable conclusions from the evidence presented in court. And Judge Walker’s factual findings and legal conclusions cast a jaundiced eye on the ‘evidence’ presented during the election campaign:

45. Proponents’ campaign for Proposition 8 assumed voters understood the existence of homosexuals as individuals distinct from heterosexuals…
79. The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. The reason children need to be protected from samesex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child…
80. The campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships…
Proponents’ purported rationales are nothing more than post-hoc justifications. While the Equal Protection Clause does not prohibit post-hoc rationales, they must connect to the classification drawn…

(p. 133-34). Just imagine the horror – campaigns that oversimplified the issues and relied on pre-existing assumptions and scare tactics! There oughta be a law!
There is something fundamentally wrong with this process and its repeated application to judicial scrutinty of the views of the voters and their elected representatives. Consider the following passage:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, – That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

“Self-evident”? That would not pass muster under the analysis applied by Judge Walker, given that Thomas Jefferson cited no statistics, no sociological studies compiled by sympathetic scientists. Yet it remains the foundation of the very existence of our Republic. The Founding Fathers sometimes relied (if you have read the Federalist Papers) on concrete if anecdotal examples, but very often the laws and rules set down then as now were based on the common experience and judgment of the people and their leaders. Part of the beauty of democracy, especially in a large and diverse nation, is that the voters never need to say why. And yet this subjection of the judgment of the many to the second-guessing by the ‘expert’ few renders that popular privilege meaningless, and literally excludes common sense from the permissible bases of law.
For all of the supposed commitment of Prop 8’s liberal opponents to diversity and its benefits in making decisions, this judicial approach tramples the rich tapestry of the enormously diverse California electorate. Detailed analyses showed, for example, that Prop 8 drew the support of 49% of white voters, 58% of African-American voters, 59% of Latino voters, 49% of women, 54% of men, 53% of independents and 67% of voters over 65. Every one of those voters entered the voting booth with their own opinions and life experiences that rendered them – with all due respect to Judge Walker – every bit his equal in their ability to decide the value of traditional marriage, the merits of same-sex rationships, the importance of motherhood, and other issues implicated here. In a nation that respected democracy, those votes would count, and the more numerous faction would decide – unless the people had by previous agreement placed the issue beyond elections (as plainly, nobody had reason to think they were doing with regard to the definiton of marriage when they ratified the Fourteenth Amendment in 1868). Instead, the vote was re-cast by an electorate of one – one attorney, white, male, Republican (Judge Walker was originally proposed for the bench by Ronald Reagan) and in many other ways unrepresentative of the California electorate as a whole.
The American people deserve more respect than that.

32 thoughts on “The Prop 8 Decision: Having It Both Ways”

  1. Ah, you never fail to disappoint on this one:
    1) Cultural paradigms change. Boo freaking hoo.
    2) This is amongst the most ridiculous stuff you write. Your airplane analogy is so utterly bogus I can’t even believe you wrote it. How does allowing gay marriage limit the number of children being born? It does not. Are you assuming if gay marriage is illegal queers will just decide, “screw it, I’m going the straight route so I can have kids”? Preposterous beyond all recognition.
    3) Just because people vote for it doesn’t make it right, fair or legal. Tyranny of mob rule as I recall.
    The United States, at least temporarily, is a better place today.

  2. Crank, on what basis does a judge at any level overrule a vote of the people, unless it is a direct violation of the Constitution?

  3. The Crank’s point with the airplane analogy is not that gay marriage limits the number of children being born, but merely that, if more children is the goal, there is a rational distinction between hetero and homosexual marriage. The issue is that the rationally related standard is not a difficult one to meet. If the Supreme Court overturns Prop 8 eventually, I hope they do it by giving homosexuals heightened scrutiny, as opposed to torturing the rationality test.

  4. His analogy is pathetically off-base. First, there are no finite limits on marriage. Now anyone can do it (whee). Secondly, to assert this would be to assert that some hetero marriages are preferable to other hetero marriages, not just the ones involving, y’know, the gays. I can’t have kids (in the sweaty, traditional sense of the word, nor do I want them in any sense of the word) so am I out as far as getting married goes (not that I want to do that again either)?
    Basically, it’s two options. 1) Gay and straight mariage are both in 2) Neither is licensed by the state. I guess 3) would be to overturn the 14th Amendment and pick your favored groups. This is the most conservative thing out there for y’all to go with. Stabilized (in theory) relationships, legal commitment, etc. Go with it or bail entirely but waffling around with airplane analogies is like bringing a knife to a gun fight. Do better or go home.

  5. 1) Fundamental rights are not dependent on the outcome of elections.
    2) California (along with every other state in the nation) has never required that individuals entering a marriage be willing or able to procreate.
    3) Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners.
    Reagan-appointed Judge Walker didn’t overturn Proposition 8. He affirmed the rights of gays in California.
    Kudos to him.

  6. “Fundamental rights are not dependent on the outcome of elections.”
    Ah, but somebody has to decide what rights are fundamental.
    Either the voters do it, or one guy in a robe does. Which, de facto, is no different from a theocracy, in the sense that one guy tells you he’s consulted the higher authorities and decided what is and is not fundamental.
    I’ll take having the people decide. The Bill of Rights came from the people. Roe, Lochner and Dred Scott didn’t.

  7. Yeah, but when “the people” vote to affirm abortion rights (or reject restrictive measures) you’re not so into that. Just say you don’t want gays getting married because you don’t like the idea of it for whatever reason. It has zero to do with kids, voting rights or the acceptance of a cultural paradigm at a larger social level. I’m guessing that a religious level your branch isn’t keen on the whole gay thing and so it all come back to morality or your perception of what is and is not moral. Whatever. A Bush appointee did you sideways and he did the right thing. A little more equal protection around these parts works just fine. Go America.

  8. jim,
    Debating with conservatives, like Crank, first takes having to lay bare all the red herrings they throw into the debate. procreation? seriously?
    Notice how economic debates (when a Democrat is President) always begin with their fear of deficits (which need to be pointed out, happen worse under their GOP heroes), then spending (until you point out they wouldn’t cut a nickel of defense spending), until you toss out all their red herrings and get to the underlying issue. At the end, you’re left with the debate being between govt. spending for the needs of all citizens or just the connected, crony-capitalists whom they support.
    The idea of gay men having sex makes Crank feel all icky inside, but having gays treated as second-class citizens in their own country enforces his feelings of moral superiority and makes him feel better inside.
    Just because conservatives, like Crank, won’t just come out and say so, doesn’t mean that’s not their real issue with gay marriage.

  9. “To be blunt, gay sex does not lead to illegitimacy or abortion – and thus the state’s interest in the subject is less vital.”
    I have yet to see the sperm of two gays, or the eggs of two lesbians, combine to create a baby.

  10. Berto, give me a break. There is such a thing as constitutional interpretation. Reading the constitution as not requiring same sex marriage (which was clearly not the intentional of the designers of it, or the amendments) is not some hidden proof of some one’s homophobia. If he people (or the legislature) want to vote to allow for abortion, or for gay marriage, civil unions (which I support), then fine: let them! If they want to vote against them, just the same. I would not want judge’s imposing his point of view on the grounds that the constitution must advances with the society. Do you seriously believe Justice Thomas or Scalia would overturn a state that voted for liberal abortion laws, or allowing gay marriage? If so, on what basis? Moral beliefs are a perfectly valid reason, I must say, for adopting policy. It’s moral beliefs and not objectivity, that causes some to support deeply progressive tax rates. It’s moral beliefs and not objectivity that causes some to support gay marriage. It’s ridiculous for a judge to declare: that’s based on morality so that’s unconstitutional. To declare that judges are to be the guide to what is truly objective is a road to tyranny.

  11. some amazingly ignorant statements in these comments …
    Obama will have borrowed more money (debt) by the end of his first term than all other presidents combined … and he will have spent more money in 4 years than any other president has in 2 terms …
    face it, you got punked and now your anger at yourself needs an outlet so you may as well go off on right wingers and the GOP …

  12. The developer/airline hypothetical is absurd. If all you cared about was your economic self-interest and mazimizing children, there are any number of ways you could discriminate to achieve that goal: fly in only practicing Catholics or illegal immigrants since they would have an interest in bearing many children who would be US citizens. The problem, of course, is that discrimination of that character is unlawful. Crank may disagree with the Civil Rights Act or Supreme Court decisions, but they are the law.
    Judicial review is inherently anti-democratic, but our — drum role, please — Founding Fathers provided for juducal branch and the early court effectively describing the “original intent,” authorized the courts to strike down statutes that violate the Constitution. As Lt. Kaffee, so eloquently put it, “Were you absent the day they taught law at law school?”
    Finally, Crank, when the people decided that blacks and whites could not marry, that blacks had to sit at the back of the bus, or — to hit closer to home — that gun ownership could be regulated, whre was your outrage at the judiciary. Oh wait, I keep forgetting. It’s judicial activism only when the wing nuts don’t like the result. My bad.

  13. Thanks for chiming in Jeff. Don’t worry about sticking to the topic or even a topic even mildly related.
    So you want morality laws? Very Taliban of you. What if your view of morality becomes a minority/ridiculed viewpoint? Are you okay with the new morality setting up the laws?
    This is about equal protection under the law. And it is about freaking time. Your view of morality may very well be that homos are bad, bad, bad. Other people’s might be that letting some people do something and not letting other people do the same thing simply because of what they like to do with their naughty bits is not so moral (not to mention very, very silly).
    Either get the state out of the marriage business or let the gays in on the deal as well. Or re-write the Constitution to keep out whomever the moral powers that be deem unworthy.

  14. Crank, I tend to agree with you, except as to one important distinction. Whereas, you have elaborated the argument regarding procreation in general, and the State’s interest in protecting and managing procreaiton, I see it on a much more important level – the State’s interest in protecting the result of unplanned procreation. It is a universal truth that, while people who plan for a child tend to be prepared for such (with exceptions, of course), children who ar ethe result of unplanned procreation are at a much greater risk, financially, socially, emotionally, and in all other significant ways. Every study (as well as common experience) testifies to this fact. The State’s interest, as far as I can see, is to protect these children from the repercussions of fatherlessness (and/or motherlessness), and , importantly, the concomitant burden such children, statistically, place upon the State.
    To this end, the State has an interest in encouraging a permanent, legally enforceable, bond between the two (yes, TWO) parents that neither can shirk.
    Now, Judge Walker can argue that 18% of same-sex partnerships are raising childern, but the simple fact of the matter is that exactly 0.00000% of that 18% is raising a child that they did not PLAN to raise. Other than extreme examples (such as rape), it is physically impossible for a man to impregnate another man, or woman impregante another woman. By the same token, absent surgical means (which have not existed throughout the history fo the institution, by and large, excepting from about 50 years ago), there is no way to 100% guarantee that a man-woman pairing will not have a child. Garden-variety miracles like this happen on a fairly regular basis. So to argue that same-sex marriages are on the same plane as opposite-sex marriages, resting as it does on, at best, a selective view of the institution, is inapt.

  15. I haven’t posted here in a long time, as it’s just gotten too radical. But I figure, why not now (it’s not like the Mets are doing anything except making the sun come up tomorrow).
    Marriage is a word that has two meanings, and that is really the crux of the matter. Should a priest, minister, rabbi, imam, or whomever, marry two people, thereby creating a family unit that has different civil and taxation rights than others have, when their religion forbids it? No, of course not. But if a marriage, in the second meaning, means that a union of two people create a household unit to simply get such civil rights, then a justice of the peace does have to confer it. Because then it’s a civil matter, not a religious one. After all, a catholic who marries a protestant in city hall is married in the legal sense, but not in a catholic one.
    And don’t give me the crap about how a marriage exists to create children. If so, then Rush Limbaugh and Bill O’Reilly, those great child rearing experts, have no business getting married since they have had no kids, nor have they adopted them. And let’s not forget the Shakers, who forbade themselves of having sex, much less children. They died out basically due to evolutionary pressure (and maybe some base stupidity), but since they never intended to have children (the conventional way anyway) should they be allowed to get married?
    The issue really is a civil rights issue, and not a religious one, or shouldn’t be anyway. And the Constitution is NOT a set of laws, but a series of restrictions on what the government can and cannot do. And let’s face it, if the Constitution exists to restrict civil rights for a large subset of the population, then it’s only an old calligraphed document with no meaning.

  16. “when the people decided that blacks and whites could not marry, that blacks had to sit at the back of the bus, or — to hit closer to home — that gun ownership could be regulated, whre was your outrage at the judiciary. Oh wait, I keep forgetting. It’s judicial activism only when the wing nuts don’t like the result.”
    I don’t understand this argument. First, modern day conservative judicial philosophy primarily does not argue that Brown v. Board of Education was wrong in it’s results but on how it was decided (it didn’t explicitly reverse Plessy v. Ferguson, for example). The Heller Decison, which was NOT activist at all, unless the founding fathers themselves were lying when they were talking about the citizen’s access to firearms. The desperation of the left on this issue can be seen in how they rapidly shifted to claiming that the establishment clause no longer encompassed the second amendment after it became clear that all other attempts at defeating second amendment rights were failing. It would be as if a religious fundamentalist had claimed, in an effort to argue that the states can set up state funded religions today, in fact the very same thing to the first amendment. This such radical departure from precedent would not occur from any of the conservative justices, of course.
    Second, when has it been the job of a judge to presume motives. Isn’t it the job of a legislature or a people to decide such things? This debate seems to be about the law itself, and whether it’s bad because of this or whatever. But why not just let the people decide? What is so unacceptable about that? If the people want to make a stupid decision, then let them! If the state wants to say same sex marriages only, then FINE! What is wrong with passing an amendment?
    Another thing, this argument that, “judicial activists are necessary sometimes because maybe the constitution is too old and it’s hard to get an amendment that I like” is a dangerous argument. First, it’s anti-democratic. Second, it’s anti-the rule of law in that it encourages people within the governing establing to ignore the constitution and the laws and instead advance their own ideologies. Third, if I oppose your position, and I support the rule of law, and your side takes more and more power using the court, and subverting the voters then why should I hold back from supporting revolution to overthrown you? Not now maybe, but maybe twenty years from now if say all sort of other things not in the constitution magically become constitutionally rights (No one has the right to rule tyrannically in the name of anything, even equality)? I’m not even really opposed to same sex marriage that strongly, but these strong arm tactics have the potential to rip the country in two over time.

  17. What if the people decide to pass a law that says “every day we get to come over to your house, beat the crap out of you, steal all your stuff and burn your car up.” That’s a pretty dumb law but I guess you would be okay with it if the people decided it was the way it was going to be.
    The judge found this proposed law unconstitutional. It violates the Equal Protection Clause and the Due Process Clause of the 14th Amendment. Just because people voted to uphold it doesn’t mean it can go into effect. Courts are there, in part, to protect people/segments of society/those who can’t protect themselves, etc. from the majority imposing their opinion and will in discriminatory and/or illegal ways. We don’t live in a democracy by the way (it’s a Representative Republic meaning you don’t get to vote on everything) so when a part of the 3 parts of government steps into correct something that is part of our democratic process with all its checks and balances in action. Go America. Better place today than it was 2 days ago. Good for us.

  18. Jim makes a spurious argument that is so ridiculous it fails as even the basis of analogy.
    Prop 8 merely specified a definition. A majority of voters agreed that marriage is defined to be between a man and a woman. There is nothing unconstitutional about a definition particularly when it affirms a definition that has been in effect since time immemorial. How, any judge could suddenly decide a definition that was in effect at the time of the Constitution is now unconstitutional simply because it was voted on is baffling.
    We clearly need a new judge.

  19. Rick,
    Wow, amazing try. “Prop 8 wasn’t a law or anything, just a definition that said that if you aren’t straight you can’t have access to the same things straight people do.” Nothing wrong with that, right? So we could just start defining things like, “The back of the bus is the place where the black people sit and the front of the bus in where the white people sit.” Not a law, just a definition. Blacks weren’t even legally protected (or considered people) at the time of the Constitution so it’s all peachy. There were many things in effect at the time of the Constitution that we have done away with because they were patently out-of-date, un-American and wildly discriminatory/racist/insane.
    This violates a pretty significant Amendment to the Constitution. While it is not my argument (just a federal judge appointed by GHWB) it is a damn good one. Your argument is, “This judge sucks.” Good one.

  20. Dred Scott.
    Justice Taney decided he was going to settle this Slavery Issue once and for all.
    Judge Walker equal Justice Taney?

  21. Berto: Judge Walker was appointed by Bush 41, not Reagan. And you may think he had good reasons for overturning Prop 8, but that is exactly what he did: “Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.” (Quote from the last page of the decision.)

  22. In regard to the original post, while I disagree with Judge Walker’s decision, I don’t understand the “fertility” argument (#2 above). It is certainly true that gay couples are much less likely to be raising children than heterosexual couples. But if the government has a goal of encouraging more children to be born, how does prohibiting gay couples from marrying facilitate that?
    I don’t think American society wants to encourage gay people to marry members of the opposite sex in order to have children, sort of like what Governor Jim McGreevey did.

  23. Joshua,
    Judge Walker was nominated by Reagan. He was confirmed when Bush 41 was President.

  24. #2 makes no sense because it is not a real reason, just something to say. Points #1 and #3, while not as absurd, are also mis-directions. Opposing gay marriage has nothing to do with the arguments presented in this long and well-written essay and subsequent comments.

  25. I don’t really buy into arguments about how a law from 150 years ago that had nothing to do with gay people and wouldn’t have passed if it did requires gay marriage.
    That being said, my personal view is that allowing gay marriage is societally beneficial. Conservatives often seem to think people will become gay for the benefits, which I’m pretty sure no one has ever done, so I don’t see the downside. Lesbians in this day and age often have children, so providing the best environment for those children is a worthwhile goal. And while gay men rarely have children and are also unlikely to become more monogamous for the benefits, I don’t see how it hurts.

  26. Why did it take someone 140 years to find that the Fourteenth Amendment allowed two homosexuals to marry? How could all those other judges and justices have missed it when it was right in front of them?
    I guess it’s like the NC ACLU telling the Raleigh City Council that the group could pray before a meeting but couldn’t mention Jesus because of the Incorporation Doctrine. Liberals say the darndest things.

  27. Crank:
    You say that someone has to define fundamental rights. On that point you are correct. And in fact, the Supreme Court has already declared the right to marry to be fundamental. The Court has done so repeatedly; it’s a settled issue. It’s going to take some serious disingenuity to overturn this ruling.

  28. Keith,
    How long did we have slavery in this country? How long was there state authorized discrimination? Just because it takes a long time to get to something and deal with it appropriately does not mean that it is the wrong thing to do. Women couldn’t vote in this country for 160 years. Why did it take so long to figure out that was, uh, inappropriate? Don’t let the amount of time something was left unaddressed confuse the issue of doing what makes sense and doing what is right for the American public. This, hopefully, can be some landmark ruling that we can look back on in 50 years and say, “So obvious, why did it take so long? We’re a better country because of that.”

  29. I do enjoy how critics in the comments replicate the Judge Walker methodology of saying ‘nope’ to arguments they disagree with.

  30. Somewhat ironically since American conservatives tend to bash anything European, Proposition 8 would still be law if California had been France or Switzerland – that is, a country where Vox Populi is actually Vox Dei and referendums are appealable only by other referendums. So if you want this never to occur again or at least more rarely, take my European advice and stop worshipping your Founding Fathers, treat your Constitution as some kind of God-given text always to be interpreted as one pleases but never (or rarely) to be amended and reconsider your reliance to judges as keepers of the eternal truth. You’ll see that it makes life much easier.

  31. The 8th Circuit ruled in 2006 that:
    1) There is no constitutional right to same sex marriage
    2) Procreation is a rational basis
    3) Marriage law is left to the States
    The pervert judge noted that there is no record of California inquiring into procreation as it relates to marriage; that is because the State did not have to inquire into common sense. It is obvious to me that same sex enthusiasts have no idea what common sense is.
    This pervert declared religion illegal; which in-fact eliminates the 1st Amendment rights of those who oppose special rights for perverts via judicial fiat. The right of conscience and the free exercise thereof as enshrined in the 1st Amendment has just been put on notice.
    Get a rope!

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