If Judge Walker Were Consistent

Here's an article from the L.A. Times, reprinted with one small tweak:

Reporting from San Francisco and Los Angeles — The federal judge who overturned Proposition 8 Wednesday said the ballot initiative that banned polygamy was based on moral disapproval of polygamous marriage and ordered the state to stop enforcing the ban.

U.S. District Chief Judge Vaughn R. Walker, in a 136-page ruling, said California "has no interest in differentiating between two-person and multiple-person unions."

"The evidence shows conclusively that moral and religious views form the only basis for a belief that polygamous groups are different from two-person couples," Walker wrote. The ruling struck down Proposition 8 as a violation of federal constitutional guarantees of equal protection and due process.

Walker cited extensive trial evidence to support his finding that there was not even a rational basis for excluding polygamous groups from marriage.

Why didn't Walker condemn the exclusion of polygamy, though everything he cited applies equally to polygamy? The judge's ruling hides behind words like "equal protection," but when it comes down to it, it's just his selectively applied personal opinion of what marriage ought to include and exclude. He's not against exclusions; he's against exclusions that don't match his own.

This is disturbing because it gives power to one man that should belong to all the people of this state. If definitions of marriage (like his definition that excludes polygamy) are not unconstitutional in themselves, then that makes them something that should be decided by the people, not forced on everyone by one powerful individual.

Comments

[KWM]

Exactly. Wouldn’t polygamous relationships have more “love” by definition? More people to care for the children? How could anyone be against them?

[eric]

"Why didn't Walker condemn the exclusion of polygamy, though everything he cited applies equally to polygamy?"

Well, that wasn't the issue before him, was it? Would you approve of a judge ruling so much more broadly than the specific issue before the court? Isn't it your opinion that he has already gone too far in the ruling he made? Yet you question why he doesn't go further?

Although Prop 8 is just about terminology, everyone is treating as though it is of substance. When it comes to the substance of same-sex marriages (and polygamy, since you bring it up), I'm still curious about the reasons you would give for state-recognized marriage that apply universally, and exclusively, to different-sex couples? What are these reasons that apply to every set of people you would allow to marry and apply to no set of people you would not allow to marry? Remember, this isn't about marriage per se, but about the State recognizing some relationships as having a special status and interacting differently with people in these recognized relationships.

[Redrum]

Eric, this is called following something (in this case a form of reasoning)to it's logical conclusion.

[eric]

Redrum,

But Amy didn't phrase it that way. She asks why didn't the judge condemn polygamy. We don't know what he personally does or does not condemn, and we don't know his legal position on polygamy because that wasn't the issue before his court.

Further, Amy has not established that this is the logical conclusion. She also hasn't established that State-recognized polygamous marriages would not be the logical conclusion of her position, because she hasn't yet explained the rationale behind her position. So we can't evaluate whether her position is ultimately different on the question of polygamy than that of the judge, because we don't know the judge's position on polygamy and we don't know Amy's rationale for what relationships should receive State recognition. I am hoping that she will provide her rationale, as I requested above.

[Todd]

Just chiming in here. Not to change the subject too much, but one my big beefs with the ruling is that the judge that said that religious arguments are the only reason why Prop 8 supporters would want to keep same-sex marriage illegal.

Not true at all. The concept of the institution of marriage solely being between a man and a woman is a concept that has been accepted, valued and upheld over thousands of years, over many different cultures, over many different religions, and by virtually all types of societies. Numerous studies have shown that society is best served when a family unit of a husband/wife is intact, and virtually all cultures have held to this standard.

Why should a small minority get to redefine marriage to suit their purposes? That is my main problem with this ruling.

[eric]

Todd,

It would be helpful if you could provide links to some of these studies. I would be interested in examining their methodologies and findings.

Is there something about State recognition of the marriage that is required to gain these benefits? The reality of marriage exists independently of State recognition, so the reasons to legally recognize some marriages and not others would have to take this into account.

"...virtually all cultures have held to this standard."

Virtually all cultures have also had slavery, so we know that this in itself is not sufficient reason for accepting a thing as good.

[Todd]

Hi Eric,

Good "talking" with you.

No, I don't have links to those studies offhand, but can see if I can find them.

Regarding your comment about slavery, are you really equating the denial of marriage to a select group of people the same as the ownership of humans?

My point in saying that virtually all cultures promoted heterosexual marriage as the standard and the norm was not to justify anything and everything that these cultures do, but simply to point out the fact that the argument for traditional marriage transcends a Christian or Western worldview and that, as I mentioned, the arguments for traditional marriage are not solely based on religious arguments.

And, whether intended to or not, the proponents of same-sex marriage (and especially the homosexual lobby) make a point to make it seem like it is solely Christians or religious people who are against same-sex marriage. My point was simply to say that is not the case.

And finally (I'll make this my final caveat), I always find it interesting that the homosexual lobby's highest ideal is tolerance, except when it is for things that they are against. They show their intolerance quite plainly. I don't know that Christians claim they are tolerant (God certainly isn't), but the homosexual lobby does. Just a bit of hypocrisy if you ask me.

Todd

[eric]

Todd,

"Regarding your comment about slavery, are you really equating the denial of marriage to a select group of people the same as the ownership of humans?"

No, I am not equating the two. I was pointing out that the fact that a thing has been commonly held as a standard should not lead us to conclude that that thing is good. Slavery is a convenient example to use for this because almost every society in human history has accepted slavery in some form, but almost everyone in our society rejects it in all forms. That is, it is undeniably a "traditional value", but one that I can be almost certain will not be shared by those reading my comments. So I can pretty safely use it as a counter-example. (Although there have been times on this very blog that people have ended up arguing that sometimes slavery is A-OK.)

Regarding your other comments, I try to avoid getting into examining motives. I prefer to stick with evaluating arguments. The fact that Prop 8 was largely promoted by Mormons and Christians* doesn't alter the validity of the arguments for or against it at all. Every time it comes up, I try to get people to provide me with the non-religiously-based arguments against State recognition of same-sex marriages. That is, I want to know the arguments that are valid regardless of whether a particular religious view is correct. I have had very limited success in extracting these arguments, and I have not been able to formulate any good ones on my own.

I'm also not particularly interested in "tolerance" arguments. Some level of tolerance of differences is required in any kind of diverse society, just from a practical point of view, but I don't think that tolerance in itself is necessarily an ideal worth pursuing. I would agree that "tolerance" is often wielded as a rhetorical weapon, because… who wants to be seen as opposing tolerance?

* (I'm not taking a position on whether Mormons are Christians or not, I just couldn't quickly think of a neutral way to phrase it.)

[KWM]

Eric,

>>”I try to get people to provide me with the non-religiously-based arguments against State recognition of same-sex marriages.”

Ok, the state has no interest at all in allowing same sex couples to marry just as it doesn’t have any interest in allowing polygamous marriages, interfamily marriages, marriage to animals, etc. The state does have an interest in different sex marriages because of the very nature of them – they populate society.

[eric]

KWM,

Two things:
1. That would only apply to childbearing couples. All other couples are not meeting the criteria, so they should not be allowed to marry. Is that your view?

2. Do you have any reason to believe that human reproduction will cease in the absence of State recognition of marriage? According to the CDC 38.5% of births in the US are to unmarried women. There seems to be no dependance on State recognition of marriage for the population of society to continue.

The issue is not marriage, but the recognition of marriage by the State and the differences in the way the Law deals with those in the State-sanctioned relationship.

[KWM]

On #1. Of course not, but the state would be under a huge burden, financial and otherwise, to police such a thing.

On #2. The answer to this is irrelevant. It doesn’t matter. The point is, the state should take interest in those relationships that bear children and populate society. Whether or not this would continue, as you put it, with same sex marriage doesn’t matter.

[KWM]

Eric,

Also, just to note: Your CDC figure helps my point: The state has an interest in out-of-wedlock births, mainly decreasing them. In other words, you will never catch the state promoting it. The state would never promote such a thing to help single mothers feel good about themselves. See, the state is very mechanical in this way. Rightfully so.

[Complete Concierge]

Eric, slavery still exists. If you clock into work part or full-time, you are participating in something that has gone on since time began. On the other hand the mistreatment of slaves (employees) is something that should have never been, and thankfully is no longer for the most part. And if you would say that 'well they were forced into work so . . ', I would just ask you if you have ever tried to support yourself without having a job! ;)

[Complete Concierge]

And FYI Eric, Mormons are in no way shape or form Christians. Doctrinally speaking, we have about as much in common with Mormons as we do with Muslims.

[eric]

I see, your concern with #1 is strictly practical, but in principle you believe that only parents should receive State sanction for a marriage. We could require that evidence of pregnancy be presented in order to obtain a Marriage License. Then, the couple would be able to have their relationship State-approved before the child is born. Would you support this? Otherwise, aren't all these childless couples simply taking unfair advantage of the system?

For #2, I don't understand why you think it's irrelevant. You gave, as a reason for State involvement, the need to populate society (i.e. making babies). I pointed out, backing it with evidence, that this is not something that is dependent upon State-issued MarRiage Licenses. In other words, I refuted your argument. How is that not relevant?

[eric]

KWM,

"Your CDC figure helps my point: The state has an interest in out-of-wedlock births, mainly decreasing them."

That's completely contrary to your point. Your point was that the State has an interest in populating society. Currently 38.5% of the contribution to populating the society is coming from outside of State-recognized marriages. Now you want to argue that the State has an interest in decreasing this? That is exactly opposite to your earlier claim. You now have the State simultaneously supporting and opposing the population of society.

[eric]

Complete Concierge,

I agree that slavery still exists. It continues in many places. I disagree with your claim that voluntary employment is the equivalent of slavery.

[KWM]

Eric,

On #1: That is still a substantial burden to the state. Tracking births, verifying them, etc. The state can do without it. And frankly, the citizenry can do without those costs.

On #2: Hardly. Not only populating society; but the combination of populating society in the most efficient and productive way. Hence, the state’s rejection of out-of-wedlock births. If population growth was all that mattered, the state would endorse all births. The state’s interest lies only in productive population growth and stability.

[eric]

KWM,

" In other words, you will never catch the state promoting it"

On re-reading this I am wondering if you were using sarcasm, and I just missed it. If you were, I'm sorry I missed it. If you weren't, I'm sorry for implying that you were - I don't mean it as an insult. It can be difficult to tell in text-only.

The State does support out-of-wedlock births among the poor though the way that support payments are structured. A husband's income counts against your aid, but a boyfriend's does not. So the State discourages poor mothers from being married. This may not change the number of births, but it changes the proportion that take place within a State-recognized marriage.

[KWM]

Eric,

I don’t know about support payments, but if what you say is true, it would be indirectly promoting it - yes. Of course the state can’t track boyfriends. “So, who are you dating this week?”

The state is in favor of supporting children when the parents cannot, and unfortunately, some take advantage of the system.

[Complete Concierge]

Then I would simply ask you to explain how slavery is legitimately analogous to gay-marriage. Because it does seem to me there could have been forms of slavery that were nothing like what we saw in the united states some years ago, and it also seems that having provision at the expensive of slavery (assuming you are not being mistreated) may not be the *best* thing, but certainly might not be a bad ting. People are mistreated at work to this day, and I think thats a fair consideration.

And if its fair to say that like slavery . . . strictly heterosexual marriage isin't the best thing and thus, enter gay marriage/total marital liberty, which IMO should include polygamy.

(I should not that this does not neccessairily reflect my opinion on the matter)

[Complete Concierge]

For the record BTW:

" I was pointing out that the fact that a thing has been commonly held as a standard should not lead us to conclude that that thing is good."

I don't necessairily disagree with that statement. I just cringe when I hear slavery and gay marriage compared. lol.

[Todd]

Hey Eric,

Finally have a chance to check back in. First off, I do enjoy these types of conversations, although I think that these conversations are difficult to have in a “text only” format. Too much can be lost or read into with the briefly written word. That being the case, I will proceed…

Regarding your latest response to my post above…I would disagree with you that slavery is a “traditional” value. I can see that your point may be to say that it was tradition at one point, which I would agree, but “traditional values” today have an admittedly different meaning. (Plus slavery is not the practiced “tradition”, at least in the US and the Western world today.)

I would also reiterate the reason for my bringing in multiple cultures was not to excuse the practices of those cultures, but simply to say that there is something inherent in human beings that promote heterosexual marriage as the standard. This shows up in societies both recently and thousands of years ago, first world nations and third world nations, religious and irreligious people, etc. So that speaks against the argument of the judge’s (to cite the original point of the article) that religion is the only reason people are against same-sex unions. The proponents of same-sex marriage are not simply fighting Christianity or those with religious convictions. They are fighting against virtually all of human history in terms of this institution. Therefore, your point in bringing the argument of slavery as having been accepted and practiced by other cultures is irrelevant.

Todd

[eric]

KWM,

"On #1: That is still a substantial burden to the state. Tracking births, verifying them, etc. The state can do without it. And frankly, the citizenry can do without those costs."

If a person wishes to take advantage of a child tax credit, they must demonstrate the existence of the child. If a person wants to take advantage of the mortgage interest deduction, they must provide evidence that they have payed the interest. What is the difference between these things and someone who wishes to receive the legal benefits of marriage, which you believe to be legitimate in order to promote the continued stable population of society, being required to provide evidence that they have, or will soon have, a child?

People want State recognition because it is valuable. This value isn't created by the State, it is only transferred by the State from the non-married population to the married population. If someone wants to take advantage of this value, at the expense of others in the society, it seems reasonable to require them to demonstrate that they meet the qualifications. The only justifications for State involvement that has been presented here have to do with the care of children. To qualify, one must have children to care for.

[KWM]

Eric,

A couple could be unsure about having kids – and marry. Perhaps they change their minds in two or three years. Again, creating all this state policing wouldn’t be politically feasible. I could leave it at that. It’s simply not feasible or realistic to put those requirements on a married couple. "So, do you plan to have kids in 5 years? 10?..."

I can acknowledge the state’s non-interest in same-sex marriage and at the same time reject the state’s nosing around in the affairs of same sex couples and their plans for having children. There is no inconsistency on my part and I’m happy to leave it there.

[Redrum]

I'd like to pose a new question. Should the recognition and or definition fall under the role of the state in the first place? Slaves used to hold hands and jump over a broom stick and run into the field. No marriage license or benefits were issued and so were they married in God's eyes? Just a thought.

[KWM]

Hi, Redrum.

I don’t think the issue is a religious one. Marriage in God’s eyes and marriage in California’s eyes are very different things.

[Redrum]

Correct, and I meant to put forth a secular scenario or question to some and a religious to others on this board. So my secular question -- why should the state be involved in a commitment between two people in the first place? Does the law's role to protect life, liberty, and property include defining who is really married and who is not?

[Todd]

Redrum,

I've heard the argument that the State should only be involved in civil unions because a marriage is a legal agreement, nothing more nothing less. If Christians or others want to have a church cermony and call it "marriage" that is fine, but that the State only does civil unions.

But what young bride on her wedding day wants to go to the courthouse and have her ceremony be about as romantic as going to the DMV? Even then there will be others who want the term marriage and all of the romantic accoutrements it brings, and will say that it is being discriminatory.

My point in that is saying, even if we separated the Church and the State in regards to marriage, it would still be dividing and discriminating and those on the "outside" would want in.

I know the proponents of same sex marriage have stated that no church or minister would be forced to conduct a ceremony that is against their religious beliefs, but with the scenario I outlined above, I can see how that claim could be invalid.

Hope that made sense, I'm nearing the end of my day here. ;)

Todd

[Redrum]

Todd, if the state wasn't involved then it would no longer matter who "wanted in" somewhere. For example, if someone wanted to have a gay only church they can go crazy with it, and have the freedom to refuse to marry (under their definition mind you) a man and a woman while they're at it, and vice versa. So, back to my original question...?

[eric]

KWM,

I think it would be simple to implement. No kids, no Marriage License. If you want to qualify for a Marriage License, you need to provide evidence of kids. Kids in utero would count. This provides the benefits of State-recognized marriage to precisely that group of people who qualify based on your rationale.

Just so we can be clear on where we stand, do you believe in principle that State-recognition of marriage should be reserved for couples who reproduce together? This is to distinguish from concerns about implementation or, political feasibility.

[Amy]

>>and we don't know his legal position on polygamy because that wasn't the issue before his court.

The issue before the court was Prop 8, and Prop 8 establishes two aspects of the definition of marriage: number of people, and the sex of those people. What came before the court involves same-sex marriage and polygamy equally.

The fact that he didn't address polygamy merely goes to show that he wasn't concerned about the constitutionality of limitations, he was concerned about establishing same-sex marriage.

[Brad B]

You are right Amy, and however obtuse the opponents of Prop 8 act, [even those in a position such as "judge"] they are willing to expose their lack of integrity for all to see if we will only look.

It's elementary to see the connection between polygamy and same sex union. And is should be elementary to know that the state does in fact discriminate all the time--and rightfully so. Government is an instrument of God's common grace, ordained to punish bad behavior and reward good behavior.

[norris hall]

Quote: The concept of the institution of marriage solely being between a man and a woman is a concept that has been accepted, valued and upheld over thousands of years, over many different cultures, over many different religions, and by virtually all types of societies.

That's the same arguement they used in the past to justify polygamy, slavery , the divine right of kings and keeping women from voting.

Aren't you glad we don't have to live like they did 1000 years ago?

[norris hall]

Can a hermaphrodite marry?
And if so, which gender would the spous have to be to be considered a "real marriage" by prop 8 suppporters

[Redrum]

Is marriage nothing more than a contract? What is the nature of the agreement then? This is the first question.

[KWM]

Eric,

>>”I think it would be simple to implement. No kids, no Marriage License.”

No, it doesn’t work. Most people like to marry before having kids - that's a necessary component. The state has an interest in this stability as well. Set up the institution and relationship then have kids.

>>”Just so we can be clear on where we stand, do you believe in principle that State-recognition of marriage should be reserved for couples who reproduce together?"

As I stated, it should be reserved for opposite sex couples that wish to enter into it.

[eric]

Amy,

"The issue before the court was Prop 8, and Prop 8 establishes two aspects of the definition of marriage: number of people, and the sex of those people. What came before the court involves same-sex marriage and polygamy equally."

The issue in Prop 8 was same-sex marriage, not polygamy. Prop 8 did not establish the restriction on polygamous marriages. They were not recognized prior to Prop 8, and Prop 8 did nothing to change that. The purpose of these Propositions is to change the law. Prop 8 is no longer valid, having been struck down by the court. Does California now recognize polygamous marriages? No, it does not, because that isn't an issue in Prop 8. Here's a little table that might help (sorry about the formatting, but it looks like html table tags aren't supported).

Relationships qualifying for "Marriage" under CA Law

- - - - - - - - - - - - - - - - - - Pre-Prop 8 | Prop 8 | Post-Prop 8
Different-sex couples - - - - - -Yes - - - - - -Yes - - - - - - Yes
Same-sex couples - - - - - - - - Yes - - - - - - No - - - - - - Yes
Groups > 2 - - - - - - - - - - - - - No - - - - - - No - - - - - - No

What was the thing changed by Prop 8? Only the status of same-sex couples changed. Polygamy was not legally recognized prior to Prop 8, and the Proposition was worded so that it could not be construed as changing the law to allow polygamy. The Judge in the case did the most he could do, which was strike down the Proposition before him. Polygamy simply is not involved.

Your point would only be valid if polygamy had been legal prior to Prop 8, then Prop 8 made it illegal, then a judge overturned only the provisions of Prop 8 regarding same-sex couples, but left in place the restrictions on polygamous relationships. This is not what happened. Only the status of same-sex couples has changed throughout this process.

[eric]

KWM,

"Most people like to marry before having kids"

Most people also like a six figure income and a vacation house at the beach. Is it the business of the State to be providing what most people want?

We are talking about the justification for State involvement in marriage. So far, the only justification you have provided is to support the stable upbringing of offspring. Yet, when offered a policy that would do this, without wasting resources supporting people who don't qualify under this justification, you won't support it and you haven't provided a valid reason why you won't support it.

Nothing about the policy I proposed would prevent any couple from getting married at any time they wish. This policy only applies to State recognition of marriages for the purpose of determining how the State interacts with people. All of this necessarily depends on the assumption that Married and Non-Married people should be treated differently under the Law (otherwise, the whole problem of who qualifies for State recognition disappears).

[eric]

KWM,

"As I stated, it should be reserved for opposite sex couples that wish to enter into it."

The problem is that the rationale you were developing depends upon the presence of genetic offspring from the couple. Does this mean you are reconsidering your rationale?

If you have a rational justification for your position, let's have it. What you have done is gone around in a circle and come back to re-state your conclusion, but without providing any justification for that conclusion.

[KWM]

Eric,

No, I’ve already laid out my rationale in the last 10 or so posts – anything else will be repeating myself. I could cut and paste if you like?

The state has no interest in same-sex marriage.

[KWM]

Eric,

>>” Most people also like a six figure income and a vacation house at the beach. Is it the business of the State to be providing what most people want?”

Did you not read the post? The state has an interest in people committing before having kids. A six figure income, vacation, etc. is totally irrelevant.

I’ve provided plenty of reasoning behind my view. You’re the one that hasn’t.

[eric]

KWM<

"No, I’ve already laid out my rationale in the last 10 or so posts – anything else will be repeating myself"

But you've recently renounced that rationale, by rejecting a policy designed to exactly match your rationale. Based on your previous rationale, Marriage Licenses would go only to those couples who have reproduced. Yet you don't support this, which means you have renounced that rationale. After rejecting that, you just restated your original position again, but did not offer a new rationale that would justify that position.

"The state has no interest in same-sex marriage."

Does the State have an interest in different-sex marriage? If so, what is that interest. It must be something other than (or at least in addition to) the stable upbringing of offspring.

[KWM]

Eric,

I can acknowledge the state’s non-interest in same-sex marriage and at the same time reject the state’s nosing around in the affairs of opposite sex couples and their plans for having children. There is no inconsistency on my part.

[eric]

KWM,

"The state has an interest in people committing before having kids."

What is that interest?

"I’ve provided plenty of reasoning behind my view. You’re the one that hasn’t."

Not only have I not provided reasoning behind my view, I haven't even offered a view. I understand why same-sex couples want the rights and privileges that come with State recognition - there are distinct benefits to these individuals. I am trying to understand the position of those who are so eager to avoid State recognition of same-sex couples while maintaining State recognition of different-sex couples. Most people who are pro-same-sex marriage attribute non-rational motives to the opponents of same-sex marriage. I am giving the benefit of the doubt and seeking out the rational motives of those opposed to same-sex marriages. It's easy to just charge "homophobia", or "intolerance", or whatever, and just ignore the opponents. I'm not doing that. Instead, I am trying to extract the rational reasons, which is why I keep probing.

I see three possibilities:
1. There are good rational reasons, and if I probe enough I will discover them and I will support State recognition of different-sex couples and oppose State recognition of same-sex couples. I will then be able to articulate these reasons to proponents of State recognition of same-sex marriages.

2A. There are not good rational reasons, and by probing enough some people who think there are good rational reasons will come to see that there are not.

2B. There are not good rational reasons, but some people will maintain their opinions regardless, which will expose them as having irrational opinions on the subject.

2A and 2B could both happen.

[Todd]

Norris,

You wrote:

"That's the same arguement they used in the past to justify polygamy, slavery , the divine right of kings and keeping women from voting.

Aren't you glad we don't have to live like they did 1000 years ago?"

You, as Eric, missed the point of my claim. My point wasn't to justify any action that has been taken by the many cultures & societies over the thousands of years (such as slavery, oppression of women & minorities, etc.), but was simply to state that the concept of a heterosexual marriage relationship has been a common thread that transcends culture, language, geography, religion, philosophy, etc. It isn't simply a case of "evil, closed minded Western Christians" versus the homosexual lobby (as many people claim). There is something inherent in humanity that overwhelmingly has affirmed the man/woman marriage relationship over time. And this affirmation has occurred on its own - that is, it wasn't because a Pope or religious figurehead stated it should be that way. Cultures and society decided on their own that this is the best scenario and history has backed up that claim.

So, as I said before, the response of "they had slavery in those cultures" is irrelevant as that does not respond to the point I was making. I'm not sure how I can be more clear on that.

Todd

[KWM]

Eric,

>>”What is that interest?”

When a couple commits to each other through marriage (most of the time promising fidelity), they increase stability for children in the future. In other words, the stability of the relationship is there prior to having kids and most importantly it is endorsed by the state prior to having kids. This way, two people wouldn’t have to have kids first, then decide to get married. What if the marriage doesn’t work out – it’s too late, they already have kids. That’s not in the state’s interest. Benefits for this reason should be conferred by the state prior to bearing children.

Please know, I understand your points 1-2B. Fair enough, but we're not even in the same universe for 2A or 2B : )

[Brad B]

It has been reported that Judge Walker is a gay man, I guess it's no supprise there's an inconsistency in the handling of this case. He ought to have recused himself to avoid the appearance of conflict of interest which is the case now. I'm not saying that the Judge *could not* rule in an unbiased way, just that the skepticism that comes with this kind of case and ruling doesn't serve the best interest of the people.

[norris hall]

Brad Judge Walker is also a conservative Republican who was nominated by Reagan and Bush over the loud objections of Gays.
He actually ruled that gays could not use the term "Gay Olympics"
So both his background and his rulings seem to indicate that he could be fair.
Should he recuse himself? I'm not sure. If a straight judge had ruled in prop 8's favor do you think he should recuse himself too...because he was biased in favor of straight marriage?

[David]

Eric,

The government (which is intended to reflect the will of the people) has an interest in the stability of society. The basic building block of society is the family. Study after study has shown that a family unit made up of a male husband, female wife, and kids is the most stable unit and the most beneficial for kids. For this reason, the state (i.e. the government) has a legitimate interest in giving advantages to such a couple.

Your scenario where the government only recognizes opposite-sex couples with kids ignores the benefits of traditional marriage even without kids - such as the lower rate of spousal abuse.