Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.
– Vaughn R. Walker, Chief Judge, Northern District of California
The recent decision overturning Proposition 8 in California is one of the best analytical decisions I’ve read in a long time from a court involving an issue of cultural significance. The last one that really impressed me with its rigorous analysis was Judge John E. Jones decision in the Kitzmiller v. Dover case in 2005.
I recommend that you download it and read it, despite its 138 page length. The Findings of Fact and Conclusions of Law are worth the time and effort alone. The quote above is one of Judge Walker’s findings of fact (# 34), and I also think one of the best definitions of marriage I’ve seen. He thoroughly skewers the proponents* arguments, one by one, many times with their own admissions.
Opponents of gay marriage tend to want to define marriage in an exclusionary, restrictive manner, so that it fits within their own restrictive, exclusionary, bigoted religious mindset. Hence, only those that fit into their Biblical worldview can be married, and all others are excluded. It’s part of the tribalistic, us-vs-them mentality that characterizes religion, indeed underscores the origins of religion, something a civilized society has moved past, one would hope. Apparently not, in fundeological circles.
Judge Walker’s opinion makes clear that Proposition 8 was religious in origin, and the political voter campaign that brought about its enactment was based on fear and ignorance in an attempt to garner the votes necessary for victory in November 2008. For instance, one of the ads broadcast during the campaign attempted to imply that if gay marriage was allowed in California, children would be harmed, without actually showing how children would be harmed, thereby playing on innate human fear. The evidence adduced at trial however, shows just the opposite – children brought up by gay parents are just as well adjusted as those by opposite sex parents, and gays are not inclined to harm children any more than the general population does (probably less so than a population of Roman Catholic priests). It’s human nature to viscerally react to claims of abused children, so it was an effective campaign to target voters with. Unfortunately, it was dishonest, and thank doG we have a court system to correct the ignorance of the mob.
Much has been made in the media about one judge overturning the “will of the people”. Again, the ignorance of those same people (including noted Constitutional scholar Sarah Palin) is what leads to comments like that. Our court system is in place to provide the checks and balances needed to effectively administer the will of the people, as long as it is done without violating the Constitution. If it does, it doesn’t matter what the will of the people is, as that “will” can be subverted to create a “tyranny of the majority” (as Madison termed it in the Federalist Papers), and if anything, the Bill of Rights and the Constitution were created in part to protect the rights of the minority, not to force the ignorance of the majority on the minority. Don’t forget, it was once the “will of the people” that blacks attend segregated schools, and it was the Federal judiciary that changed that. Sarah Palin should try putting her Bible aside and read a little more history .
For those who don’t fully understand the Equal Protection Clause of the 14th Amendment, it has been consistently held by the courts that the government cannot create classes or groups of individuals and treat them differently, unless there is a valid governmental basis for doing so. Hence, “Equal Protection”. In Prop 8, the government has decided (via the “will of the people”) that same-sex partners cannot enjoy that which opposite-sex partners can, thereby creating two unequal classes, and Judge Walker has made mincemeat out of the Prop 8 proponents’ reasoning for doing so, in the process showing that there is no legitimate governmental purpose for treating these two groups differently. Marriage is a fundamental right of everyone, and marriage has benefits, societal, governmental and cultural, that flow to those who are married. To deny those benefits to people because they don’t meet the opposite-sex classification requirement is to deny them those rights without due process, and in violation of their equal rights under the Constitution. Hence, Prop 8 is unconstitutional, and the courts are empowered, indeed required, to strike it down.
For some time I have been a proponent of the theory that we ought to do away with marriage, and simply call every coupling a domestic contract or partnership of some sort. However, that would require a complete cultural paradigm shift, not to mention the somewhat large scale revamping of our legal system. In our federal laws alone, there are something like over 1100 statutes that define marriage or give benefits to people on the basis of their status as married individuals, and this does not even take into consideration the laws of the fifty states.
After reading this decision I’ve changed my mind, and agree that it would be much simpler to adopt the definition of Judge Walker and allow everyone to get married if they so choose. There is no harm to anyone in doing so. None. The idea that the “institution of marriage” would be diminished by it is soundly rejected as nonsense, another scare tactic of the religious. If that institution hasn’t been affected by the societal changes of the past 100 years, including the divorce rate of opposite-sex couples, then the marriage of homosexuals will have little impact on it.
Churches will not be required to perform marriage ceremonies in situations they don’t approve, just like they don’t have to now if they find a proposed marriage to not be in the best interest of the church or the couple (usually the former). (I doubt, if I was gay, I’d want to be married in a church like that anyway, but that is the decision of the couple to be married). Opposite sex couples can still be married, and the gay wedding down the street will not affect their marriage or their ability to procreate if they so choose. Finally, as far as marriage goes, we will all be “created equal”.
As Judge Walker said:
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.
* An interesting sidelight is that the actual Defendants in the case, Governor Schwarzenegger, Attorney General Brown, and others (the government) refused to defend the case, in effect agreeing with the Plaintiffs, two same-sex couples. In order to allow a fair airing of all the issues, Judge Walker allowed the original proponents of the Prop 8 campaign to intervene and defend the case. He then made clear, throughout the opinion, with precision, the clear vacuous nature of the defense .