Thoughts on the Proposition 8 Ruling

I have had time to peruse through yesterday’s opinion overturning California’s Proposition 8 ad am astounded by Judge Walker’s lack of legal reasoning. It is clear he feels Proposition 8 is based solely on antigay bigotry for which there is no basis to make a law banning gay marriage. No wonder so many proponents of the decision are cheering the overturning of the popular vote of Californians by claiming bigotry cannot be legitimized by populism.

The bench is not a place for social engineering. It is a place for interpreting the law. My previous claim that Judge Walker had “magically found” a right to gay marriage within the Constitution was in error. In fact, Walker discusses at length the opposition to gay marriage comes from a time I which there were distinct gender roles in society and marriage. Said roles are no longer relevant--your guess is as good as mine what that means-- so the rationale to ban gay marriage is no longer applicable. Domestic partnerships do not make up for the ban, either, because they are viewed as having lesser social value than marriages.

So tradition is no basis for a law, according to Vaughn. He does, however, go o to note a tradition of homophobic stereotypes has affected the status of gays in society. One would suspect such an argument would besetting a strict scrutiny criteria for weighing discrimination against gays, but Walker bypasses it by declaring Proposition 8 does not even pass the rational basis test. In other words, it is bigotry on the surface.

Five thousand years of jurisprudence completely dismissed by a federal judge’s personal sense of social justice while simultaneously dismissing the Proposition 8 advocates’ moral objection to gay marriage as a basis for law. Unreal.

The concept of marriage predates that of government. It has been recognized since the dawn of time that a man and a woman joined together for the purpose of having children. Those children eventually married I order to bond families into societies. Governments developed out of these societies. There is no rational way to ignore this anthropological development and claim that marriage is somehow a right granted by a government when the concept of government does not predate the concept of marriage.

Modern governments have attaches taken an interest in marriage based on a rationale the children are vital to it future, but that does not spring from the institution of marriage itself. It sprigs from the desire to affect society. If gays are interested in the benefits government has attached to marriage--tax breaks, etc--they can et all of them through civil unions. But they cannot get a marriage through government.

While I am confident this fact is lost on the majority of ill informed supporters of gay marriage, it is not lot on the gay rights movement itself or walker, I would imagine. They are not seeking a government right, but societal legitimacy of their morality. But they may ultimately regret their victory today. Federalism has taken a big hit, with a unelected judge overturning the will of the people and telling California what is and is not in its constitution. Te Ninth Circuit is certain to rubber stamp Walker’s decision, but the Supreme Court, all but certain to take up the case, will have to be far more professional in its jurisprudence. Gay marriage advocates may not like how this ultimately plays out.