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. (From Judge Vaughn Walker’s decision declaring California’s Proposition 8 to be unconstitutional, pg. 113)
(This is a combo political/cultural issue but I am posting it here because I get way more hits on my main blog.)
The ruling over Prop 8 was hardly a surprise, coming as it does from an openly homosexual judge in the most liberal court in the land. No one thought the outcome was going to be any different, not in this court and not with this judge. What is especially interesting though is some of the reasoning that comes deep into the lengthy ruling, reasoning that comes across as purely subjective and that has nothing to do with the Constitution. You are going to hear a lot about the ruling dealing with the equal protection clause but as you read what you find is not a serious legal opinion but a lengthy diatribe by an activist judge with a direct, personal stake in the case as a homosexual living in California. The Wall Street Journal did us the favor of reading the whole 130+ ruling (I am working through it as well) and there are lots of choice tidbits in it:
Proposition 8 singles out gays and lesbians and legitimates their unequal treatment. Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents. (Page 93)
I don’t think Prop 8 specifies that at all since it is all of one sentence long. The law does not make relationships, even legal ones, between homosexuals illegal. It merely restricts marriage as a fundamental societal interest to one man and one woman. Or how about this:
Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology. (Page 95)
So Judge Vaughn Walker is not only a legal expert but he is also fit to pass judgment on developmental psychology! For his next trick he will rule on a criminal case while riding a unicycle, reciting Shakespeare and successfully demonstrating cold fusion! Wait, now he is going to rule based on irrefutable economic factors!
Proposition 8 has had a negative fiscal impact on California and local governments. (Page 90)
I am sure that the negative fiscal climate has nothing to do with the worldwide economic downturn or California’s hostile business climate or its ridiculously generous public employee benefits. In fact the rest of the country is doing swimmingly…oh wait, you mean the entire country is in bad shape? I guess Judge Walker can separate and distinguish the supposed impact of Prop 8 from the general and widespread economic malaise. One must assume that California would have bucked the trend of the economic collapse if it were not for the pernicious influence of Prop 8. By the way, I thought that Prop 8 was “unconstitutional”? You can make an argument that Prop 8 is bad for the economy of California, but the place for that was during the election cycle. That should have no bearing whatsoever on a ruling regarding the Constitutionality of a law, nor should his subjective opinions on the supporters of Prop 8 being bad people. Judge Walker having his feelings hurt doesn’t give him warrant to override the will of the people. A brief perusal of the opinion shows a stretching of the law to meet a desired objective that is fundamentally the same as Roe v. Wade, i.e. finding a “right” to abortion where none exists. Using the equal protection clause to argue that no one should be denied any activity that makes them happy if someone else is permitted to engage in that activity is bad law and hardly the intent of the Founders. Based on that logic…
- Should convicted child molesters be allowed to adopt children?
- Should polygamous couples be afforded "equal protection" and be allowed to marry?
- What about a guy who wants to marry his cat because it would further his pursuit of happiness?
Those are of course extreme and silly examples but no more silly than the men who wrote the Constitution would have found the idea that two men or two women have a Constitutionally protected "right" to get married. There are a ton of activities that some people are legally permitted to do but others are not. Under this interpretation we might as well negate all state laws in favor of Federal laws because no state would be able to enforce any law that would restrict anyone from doing anything that someone else could legally do. Judge Walker clearly is of the school of thought that the law is something that must bend to the whims of culture and that the Constitution is up for reinterpretation at will.
Please note this is not a Gospel issue. That unregenerate sinners would act like sinners and demand acceptance of their sin is not new and not shocking. Nor is our primary call as Christians in America to "defend marriage". Marriage doesn’t need to be defended. No matter how you try to redefine marriage, regardless if a couple of guys wear tuxedos or dresses and say "I do", no matter what tax breaks are involved, two men cannot be married nor can two women in the eyes of God. You can call a stone a steak but you still can’t eat it and you can call a legal arrangement involving a gift registry between two men a marriage but that doesn’t make it so. My concern is with the direction of the culture of our society and frankly I am not at all confident that this is the end of the collapse.
What we are seeing here is a decision that goes far beyond overruling a simple ballot measure. This is a decision that overrides the will of the people, upsets one of the fundamental societal foundations of America, creates a right where none exists and seeks to redefine not just marriage but gender itself. This is a huge decision that if it stands will fundamentally change American society. Some make think this change is for the better but Europe shows us the way we are headed, where marriage and family is virtually irrelevant. Europe is socially and culturally poorer than it once was and a large part of that has to do with the evaporation of marriage and family.
This ruling is going to be the next Roe v. Wade, a ruling that fundamentally changes American society and does so by creating a right where none exists, achieving a societal change desired by a minority over the wishes of the majority and does so by grotesque manipulation of the Constitution.
You cannot create a “right” that is given the force of law and the imprimatur of the Constitution to enact societal changes. If the people of California are having second thoughts about Prop 8, there is an appeals process on the books. Let the people of California decide. This sort of roundabout circumventing of the law by creating rights out of thin air and deciding Constitutional issues cannot be permitted to go on. If left unchecked, the Constitution of the United States, once the model for representative democracy in a free society, will have ceased to have any meaning whatsoever.
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