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.