Democracy Defeated

United States District Judge Vaughn Walker’s ruling that overturned California’s Proposition 8 can be neatly summed up in these eight words, taken verbatim from Walker’s opinion: “gender no longer forms an essential part of marriage.” That’s one man’s view, but the fifty-two per cent of California voters who weighed in on the issue when Proposition 8 appeared on the ballot believe that gender is indeed an essential part of marriage. The question is then: should this one man’s perspective trump the judgment of the voters who were asked to weigh in on an issue that is, at its core, a social question rather than a matter of inalienable rights?

In order to declare Proposition 8 unconstitutional Walker had to carefully construct straw men that he could easily tear down. Chief among these arguments was the idea that California voters had, in effect, set up a caste system where heterosexual couples are somehow officially “superior” to gay and lesbian pairings. This is twenty-first century California we’re talking about, not nineteenth century Alabama. Not only is it ludicrous to assume that residents of this most tolerant of states voted for Proposition 8 because they were rushing to assert heterosexual superiority, but that argument makes less sense in California than practically anywhere else. Long before Proposition 8 became the law of the land, California had statutory mechanisms in place that allowed same-sex couples to reap all of the legal benefits that differently gendered couples do.

The legal battle on the left coast was always more about symbolism than substance. On the one hand, there are people who believe that marriage is an institution with deep religious roots that forms one of the bedrocks upon which the foundation of western society rests and that government should not be allowed to alter the definition of marriage without society’s consent. On the other hand, there are people who believe that denying same-sex couples access to that institution ultimately demeans them in the eyes of their fellow citizens and relegates their relationships to “separate but equal” status. Reasonable, decent people can – and have – passionately argued both sides of the issue. We can debate the question and we surely will for a long time to come. What is troubling about Walker’s decision is not that he chose sides; it’s that the judge felt that it was his place to do so.

Walker said that Proposition 8 violated the due process and equal protection clauses of the Fourteenth Amendment. Essentially, the judge declared that California voters had no authority to decide whether or not they wanted to extend the institution of marriage to same-sex couples because the failure to do so would violate an essential right that the Constitution affords to gays and lesbians, as well as singling out gays and lesbians for unfair treatment. That’s a unique point of view and it’s hard to imagine that it will stand up when the Supreme Court looks over the case, as it almost certainly will.

Societies have always decided for themselves what marriage is supposed to be, largely based on their traditions and religious heritage. In many Islamic cultures, marriage can involve as many as four wives for example. One would be terribly naïve to believe that polygamy does not also occur de facto in the United States, but the important point is that it is not recognized de jure by the law of the land as marriage. A man may live with as many women – or men for that matter – as he wishes, but only one woman is recognized as his legitimate, legal partner.

Judge Walker not only decided that the question of what defines marriage is a constitutional issue rather than a societal quandary, he impugned the motives of that portion of the California electorate who dared to say otherwise. “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” Walker wrote. “Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.”

Walker is skating on very thin legal ice when he relies upon logic like this to rationalize his decision. Some gay/lesbian advocates didn’t want to pursue this case, because they worried that it would ultimately lead to an unfavorable Supreme Court decision and Walker’s flawed opinion would seem to bolster such fears. The notion that California was trying to officially declare that heterosexuals are “superior” to homosexuals is simply ludicrous.

It should be noted, in closing, that much has been made in conservative circles of the fact that Judge Vaughn Walker is openly gay. While that fact might play some role upon appeal, for it speaks to Walker’s impartiality, his sexual orientation really shouldn’t matter. Any liberal judge in America could be expected to render the same kind of opinion. Vaughn Walker ultimately produced an opinion that was perfectly consistent with his political point-of-view and that’s much more important than his choice in sexual partners.