Federal Judge Strikes Down Prop 8

Federal Judge Vaughn R. Walker wrote in his decision on the California proposition defining marriage as one man and one woman:

Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment," the judge wrote. "Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.

Regarding the second challenge, it's important to note that Prop 8 makes no classification on the basis of sexual orientation. The definition is one man and one woman. No homosexual person is banned from marrying within this definition of marriage shared by everybody, and there is no test for sexual orientation.

Instead, Prop 8 makes a very rational classification on the basis of a relevant characteristic—that is, the gender of the participants. Men and women are different, and there's no getting around this. This fact has biological, emotional, psychological, and more ramifications when it comes to families and the creation and rearing of children. The fact is that both male and female are essential to marriage.

Second, I find the first challenge to be disingenuous. Defining marriage as one man and one woman does not "unconstitutionally burden the fundamental right to marry" any more than defining it as only two people "burdens" it, or defining out close relations burdens it, or an age requirement burdens it, or any of our other laws limiting who can marry whom burden it.

In other words, even after the judge's decision, we still have a limiting definition of marriage. Therefore, it's disingenuous to strike Prop 8 down based on the idea that it's burdening the right to marry if the judge is going to retain the other limitations.

The only consistent options for the judge would be to either strike down all of the qualifications for marriage or let the people debate the issue and establish the definition, as they did with Prop 8, and apply the definition equally to everyone. The question is not one of equal rights (since the judge did not rule every definition unconstitutional), but of whether or not the particular defining characteristic we're talking about is relevant to the institution of marriage (race is not relevant to marriage since skin color has nothing to do with any aspect of what marriage entails, but gender is relevant). Because defining marriage is not an issue of equal rights, it's not the place of the judge to decide by fiat, but for the people to debate.

Instead, the judge merely arbitrarily drew the lines of definition for the people without offering any justification for why he drew the lines there and not somewhere else. The reason he offered (that it's unconstitutional to limit marriage) is simply false. And he must know this, or he would have struck down every part of our current, limiting definition.

(See Greg's "Same-Sex Marriage Challenges and Responses" for more on this subject.)

Comments

[SteveK]

I like your summary. I wonder what the Supreme Court will say about the constitutionality of the burden this law continues to place on the person who wants to marry his daughter, or his horse.

While we are discussing it, what about the constitutionality of the burden placed on those who want to be "retired" or "parent" or "veteran" - but cannot because of current law restrictions? I want to be recognized as a "retired veteran" and get those great benefits but the law stands in my way.

[Sam]

So what is the next step? Can this be appealed? If so, and if it goes to the Supreme Court, what would happen if the Supreme Court agreed with the lower court that Prop 8 violated the Constitution? Would that invalidate all restrictions throughout the country on same sex marriage? Would same sex marriage become legal in all states if that happened?

[anair]

activist judges have too much power.

[eric]

The whole fuss is disingenuous. Prop 8 isn't about same sex marriage; it's about the word "marriage". In California, before and after Prop 8, same sex couples have had legal access to all the rights and privileges of marriage. Prop 8 did nothing to change this. Removing Prop 8 will do nothing to change it. It may make things a bit more convenient for same sex couples, but it won't change the end result, as far as legal rights and privileges are concerned.

Appealing this ruling could end up having a meaningful effect. If the case goes to the Supreme Court of the US, and SCOTUS agrees with this ruling, they may strike down DOMA, which is the real obstacle preventing same sex marriages (under any name) performed in one State from being recognized in all 50 States and at the Federal level.

[Matthew]

"The fact is that both male and female are essential to marriage."

This is not an argument that the pro-prop 8 side made in the trial. Would you care to present any evidence that supports this assertion?

"In other words, even after the judge's decision, we still have a limiting definition of marriage. Therefore, it's disingenuous to strike Prop 8 down based on the idea that it's burdening the right to marry if the judge is going to retain the other limitations."

I agree with respect to the limitations on plural marriage and marriage with close relatives, however those issues were not the focus of the trial. The case respected the constitutionality of prop 8 itself, and the choices were either to uphold the proposition or strike it down.

[Rich]

This decision will be appealed and probably end up in the Supreme Court. If SCOTUS upholds it, the other limitations mentioned will then also be challenged. Walker's decision is laying the groundwork for polygamy and incest.

[Damian]

These are ridiculous times why do we expect anything other than ridiculous decsions?

[Amy]

>>Would you care to present any evidence that supports this assertion?

Certainly. Click on the link, "ramifications" for an overview. From there, you can probably track down more info. The Ruth Institute has resources, as well.

But beyond that, anyone who reflects on the contributions of his own parents to his family can see that each side (male and female) offered different, and necessary, things.

[eric]

Amy,

The Michigan Family text you link to is all about the value of a mother and a father to children. Are you proposing that only parents should be eligible for State-recognized marriage?

"But beyond that, anyone who reflects on the contributions of his own parents to his family can see that each side (male and female) offered different, and necessary, things."

That contains some interesting assumptions about the family history of your audience. Since contributions from both male and female parents are necessary, what do you propose should be done with children who lack one or the other parent? Since they are lacking something necessary, does that mean they are unavoidably damaged goods?

Have you never known a decent person who had a parent die while they were a child? Have you never known a decent person raised by a single parent?

[Todd]

Eric,

I see you're "fighting the battle" on two blog fronts.

I know the question you asked at the end was directed to Amy, but I thought I'd add my 2 cents.

Observe that Amy didn't say that both gendered parents offered different & necessary things to be decent. She simply stated that they offered different and necessary things. Parenthood, among many other things, provides a working definition of what masculinity & femininity is; or, in other vernacular, what it "means" to be a man or a woman.

Of course those people who lost a parent to death are not damned to a life of indecency; rather that they will be at a disadvantage in many ways to that child who has both a mother & a father.

The ideal is a two parent, monogamous heterosexual household (Google "studies on heterosexual monogamous marraige" and see the many results; I'm sure there are a ton more too). Those masculine and feminine roles are easily defined and learned in that household.

And this is another fallacy of the same-sex marriage argument - that is, that what it is to be "masculine" and "feminine" is arbitrary and that two men (or women) are just as good as one man and one woman in providing these roles to children.

Todd

[Francis Beckwith]

"The fact is that both male and female are essential to marriage."

This is not an argument that the pro-prop 8 side made in the trial. Would you care to present any evidence that supports this assertion?

What sort of evidence are you looking for? Historical? Empirical? Conceptual? Metaphysical? If I am, for example, wondering if there is wine in the cellar, I look. If I want to know the nature of marriage, do I look in the cellar? If I want to know that people ought to be treated equally under the law, where do I look? I could look in the Constitution, but that doesn't help, since I can then ask why I should believe the Constitution. After all, those that wrote the Constitution didn't get their idea from the Constitution. It was logically prior to it.

For Thomas Jefferson, equality was "self-evident." Is it, really? If it is, then there is no "evidence" for it, though it seems rational to believe. So, once can be rational in believing something for which one has no evidence. Maybe marriage is like that. You can't exclude that possibility, a priori, can you?

So, what is the method appropriate to the question you are asking?

[eric]

Hi Todd,

"Observe that Amy didn't say that both gendered parents offered different & necessary things to be decent."

She said both provide "necessary" things. "Necessary" means something. I grant the benefit of the doubt that Amy knows there are such things as people raised by only one parent, or by someone other than a parent, so she knows that these "necessary things" are not necessary for mere existence. So what does she mean? She may mean necessary to be a reasonable decent person. That would be wrong, but it may be what she means. As we keep contracting what these things may be necessary for, we quickly get to a point where it doesn't make sense to simply say they are necessary. You would have to specify what they are necessary for.

"The ideal is a two parent, monogamous heterosexual household"

Let's take this as true for the sake of discussion. Does it follow that once we identify an ideal situation we seek to disallow, or even discourage, anything that deviates from that ideal? If children of more highly-educated parents do better in school, and go on to become more educated themselves and to have higher incomes, do we enact policies to discourage non-college grads from reproducing? Is this kind of social engineering proper? Is this a legitimate use of State power?

"And this is another fallacy of the same-sex marriage argument - that is, that what it is to be "masculine" and "feminine" is arbitrary and that two men (or women) are just as good as one man and one woman in providing these roles to children."

I haven't encountered anyone who argued that in support of same-sex marriage. While there are legitimate differences between male and female, it doesn't follow that any individual becomes a good role model by virtue of reproducing. Many parents model abhorrent behavior for their children, and many children would be far better off with role models other than their biological parents. It doesn't follow from that that the State should actively seek to remove all of these children and place them in the care of superior role models.

[eric]

Francis,

Is that your way of saying that you don't know of any evidence to support that contention?

[Todd]

“Does it follow that once we identify an ideal situation we seek to disallow, or even discourage, anything that deviates from that ideal?”
Maybe, maybe not. It depends to what we are referring. In this case, I am simply stating that there is a clear ideal so why wouldn’t we aim to promote & protect that ideal? Will it always be the case (as in the case of a divorced or split home)? Of course not. But that is no reason not to hold it up as the standard at all costs.

At the risk of getting off track – this is similar to us having laws on the books against murder, for example. We won’t catch every murderer, so why have the laws? Because it is the proper thing to do. Same thing here. (I know, this isn’t a great analogy, but you get my point.)

“I haven't encountered anyone who argued that in support of same-sex marriage. While there are legitimate differences between male and female, it doesn't follow that any individual becomes a good role model by virtue of reproducing.”

I have. I have heard it said and written as a response to those in favor of traditional marriage. The argument states that children do not need a mother and a father because two mothers or two fathers can raise them just as well. That argument doesn’t take into account the unique things that a father brings into a child’s life (or a mother brings into a child’s life). As I mentioned in a prior post, it is entirely possible for someone raised in a single parent household to grow up well adjusted, but they are at a distinct disadvantage to those who are in a two-parent household.
It is very similar in thinking to the radical feminists who have stated that the only difference between men and women are just biological; that there are no inherent differences in terms of the roles that each play and the unique influence that they have on a child.

[Lavinia]

I tend to look at definitions of words. According to Noah Webster's American Dictionary of the American Language, 1828 edition, marriage is "the act of uniting a man and woman for life; wedlock; the legal union of a man and woman for life. Marriage is a contract both civil and religious, by which the parties engage to live together in mutual affection and fidelity, till death shall separate them. Marriage was instituted by God himself for the purpose of preventing the promiscuous intercourse of the sexes, for promoting domestic felicity, and for securing the maintenance and education of children."

[Lavinia]

The source of the definition is American Dictionary of the English language. Sorry for the error.

[Ken]

In general, government should stay out of our personal lives. However, the pairing of a man and a woman is the ONLY KIND of pairing ABLE to naturally produce new citizens - citizens who do not consent to the situation. THAT is where the state's interest is. We KNOW this will NOT happen with the pairing of two women or two men.

Furthermore, the bride+groom pairing (which is man and woman IN MARRIAGE) is the only KIND of pairing that can not only naturally produce new citizens (and most will), but also provide them with one guardian, role model, provider, advocate, and beneficial adult bonding partner from BOTH of the two sexes that comprise all of society.

I don't care what any expert or study says - there IS a difference between men and women. It is strong enough that Judge Walker is attracted to men and not women. How can the difference not also be important in parenting a child?

Even homosexual children will grow up to deal with both sexes. It is best they are raised with a role model from each.

[Louis Kuhelj]

Ken,
"Even homosexual children will grow up to deal with both sexes. It is best they are raised with a role model from each."

I think that you raise an interesting question of social integration that is critical to a harmonious society. To diminish skills in such social integration by denying a child either a mother or father on which to pattern their comportment, they may indeed be playing a C sharp when they should be playing a B flat in the social orchestra. The end product will be less than ideal.