Federal Judge Overrules Us California Bigots

It took him 136 pages to do it, but the windy federal judge Vaughn Walker has overturned California's Proposition 8 upholding marriage solely between one man and one woman. I'm going to touch on the highlights (or lowlights) of the case, but I do want to point out that this is a complicated and deeply-divisive issue and a lengthy opinion that cannot be covered exhaustively in one post.

If you want to read or refresh your memory about the early days of this federal case, go here to see how the feds got involved in the first place. The trial was simply a circus of witness after witness declaring undying love for a fellow human being (of the same sex), and tugging at the heartstrings of the judge who is one of only two openly gay judges on the federal bench. I won't say that this fact predisposed him to rule as he ultimately did, but it's been a rarity in any court I've been in that a judge has allowed this much cumulative and repetitive "evidence."

It's hard to glean one or two dispositive phrases from a 136 page decision, but I would single out the following two: "Proposition 8 fails to advance any rational basis in singling out gay and lesbians for denial of a marriage license," and "Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples."

The Prop 8 defense did a very poor job fending off the "rational basis" argument, perhaps from oversensitivity to mindless tolerance. Of course, there's a rational basis, but while the plaintiffs put on witness after witness proclaiming "love, love, love" (hardly a rational basis for much of anything), the defense failed to put on the counter-argument of "law, history, and biology." Oh, and that pesky "will of the people." But the most important rational basis of all is that the Constitution does not either mention or refer to marriage, clearly leaving marriage as a matter for the States (the Tenth Amendment to the federal Constitution). "Two people in love" is not a rational basis for taking that power away from the States. Why not three people? Why not three people and their dog? Why not my sister and me?

As for "opposite-sex couples being superior to same-sex couples," where is superiority an issue anywhere in Prop 8? Different, yes. Superior, no. My personal opinion of the superiority of opposite-sex couples aside, the law and the Constitution aren't contests about who has the moral high ground. Tossing aside thousands of years of western civilization and mores should not be done based largely on hurt feelings or special sensitivities. It's as obvious as the perversion of the concept of "men and women are equal" into "men and women are the same." And since domestic partnerships in California have essentially exactly the same rights, privileges and immunities as traditional marriage, where's the superiority/inferiority argument? Both institutions have equal rights, and therefore have equal protection of the laws.

The opponents of Prop 8 are already trumpeting their victory. But I suggest they tone it down a bit for two reasons. First, at least for now, the judge has stayed execution of his order pending appeal. Second, once the Ninth Circuit Court of Appeals affirms the decision (as I fully expect it to do), the United States Supreme Court is not so easily swayed by emotion, declarations of love, and absolutist views on the relationship between men and women. Likewise, the Supreme Court is able to recognize a "distinction without a difference" such as domestic partnerships versus traditional marriage.

Given that the whole issue revolves around one word--"marriage"--the Supreme Court is likely to find that equal rights are not the same as equal verbiage. Without a Constitutional mandate to control marriage, the Court is likely to leave the issue to the States to work out whether a single word changes the entire relationship between people, particularly where there is no other legal distinction between those relationships.

Which I suppose creates a third reason. If I'm right about the ultimate Supreme Court ruling, there is nothing to stop the gay marriage proponents from going back to the California voters and getting them to approve same-sex marriage, word and all. Nothing, that is, except their determination to tar all same-sex marriage opponents with the label of "bigot." There is also the problem that 45 other states have statutes which define marriage as "one man, one woman." And a recent Field poll shows Californians, perhaps out of sheer exhaustion, now favor some form of gay marriage (51% to 42%) though that might not be reflected in actual votes at the polls. Still, why risk alienating people who might vote in your favor the next time? Even the national poll numbers have narrowed to 50% opposing gay marriage with 47% willing to allow it.

The successful petitioners compare the impact of the ruling to Brown v. Board of Education and Loving v. Virginia. These are false comparisons. Brown found no rational basis for distinction based on race in education and Loving found no rational basis for a distinction based on race in marriage. Race and sexual preference are hardly the same thing. Beside the obvious scientific difference, race is specifically forbidden as a basis for state or federal law separating citizens by their membership in a "suspect class" (race, creed, color, national origin or prior condition of servitude). Some States have passed laws including sexual preference as a suspect category, but it is not preempted by federal law nor forbidden to the States by the Constitution. Like gay marriage, the Constitution leaves the matter to the States.

The decision has been praised by gay marriage advocates as "affirming that the protections enshrined in our U. S. Constitution apply to all Americans that our dream of equality and freedom deserves protection." Aw, hooey. What equality and freedom do they have today that they didn't have the day before the decision came down? This is all emotionalism and new age happy-happy thinking. It has damned little to do with the Constitution or the law. Neither a violation of due process nor a denial of equal protection of the laws was proven in any concrete way during this trial.

People casually toss around the expressions "social contracts" and "marriage contracts," but nobody seemed to notice that the Constitution doesn't mention marriage at all but does guarantee the right to contract. Now try this reasoning on for size. If marriage gets no notice at all in the Constitution and contracts are particularly protected in the Constitution, aren't domestic partnerships (simple legal contracts) actually given superiority over traditional marriage which has zero express Constitutional mention? Straight married people should be screaming to high heaven that their rights have been infringed on by not allowing their marriage to have the same legal status as contractual domestic partnerships. Of course that's silly, but it's a logical argument, given the vitriol being spewed by the gay marriage proponents. That's how frivolous and divisive, as well as dangerous this whole gay marriage issue has become.

So much for the legal discussion for the time being. But what about the 500 pound gorilla in the room that isn't being discussed? Are gay relationships really the issue? Is marriage really the issue? I don't believe they are. I think that a lot of people of good will and great tolerance have been hoodwinked about the real purpose behind the lawsuit. I believe that the law is secondary to the goal, but the law is a useful tool for diverting attention from the real issue--the socio-political agenda of the left to remove religion from the public forum forever. How so? Follow my thinking.

If the gay marriage radicals really just wanted "equal rights and due process," they could simply have produced a ballot measure which eliminates the word marriage entirely, and equalizes all domestic relationships by requiring legal marriages to be performed by a civil authority. Currently, a religious ceremony and a certificate of marriage satisfies the California requirement for a legal marriage. So change the law and leave the legal issue to the civil authority, and the religious issue to the churches and synagogues. Current law doesn't in any way prevent any priest, pastor, rabbi (or imam?) from performing a religious ceremony if their religious institution allows it. So, cut out the religious element entirely and make all legal marriages civil matters. No more need to distinguish between a marriage and a domestic partnership, even though there's no real distinction between them now except for that one word. As for traditional marriage itself, let the First Amendment do its job, and the churches and synagogues can do their job.

But that won't happen because it doesn't damage religious practice sufficiently to satisfy the leftists. I still offer to take on any reasonable bet on how long after a final decision in favor of "gay marriage" it will be before some priest, pastor, rabbi, church or synagogue gets sued for violating California's human rights, civil rights, and rabid egalitarian legislation for refusing to perform a gay wedding. "Human rights commissions" and "civil rights commissions" are almost universally populated by anti-religion leftists. Just ask the Canadians if you don't believe me.

Phony court-created basic rights will quickly trump clearly-written Constitutional guarantees. A successful California gay marriage initiative which does not include specific religious guarantees would do the same thing. Out-of-control social justice judges already routinely ignore the clear wording and intent of the Constitution to obtain their socio-political goals. Imagine how quickly that would become the rule if the Supreme Court finds an umbra, penumbra or emanation of the Constitution which protects homosexual marriages. But don't despair, I still contend that the Supreme Court will find no such right.

For those of you who remember me in my former life as LawHawkSF, I have not entirely lost touch with San Francisco. Regarding the gay marriage decision, the Chronicle didn't disappoint. The headline didn't mention the judge's brilliant reasoning. That's largely because the people at the Chronicle wouldn't recognize reason if it jumped up and bit them on the arse. The headline: "Judge Vaughn Walker's 136 page ruling against Proposition 8 amounted to a ringing defense of the institution of marriage." Huh?