Prop 8 Ruling: the Right Responds
0From coast to coast, GLBT individuals and families, and their supporters, met the Aug. 4 ruling by Chief U.S. District Judge Vaughn Walker striking down Proposition 8 as unconstitutional with tears of joy. But the country's religious and political conservatives had equally strong, negative reactions, slamming Walker--who is reportedly gay himself--as unable to be objective due to his "lifestyle choices," and declaring that the Constitution does not set any sort of federal "marriage policy."
Walker's ruling found that Proposition 8--a 2008 California ballot initiative that put the then-existing right of gay and lesbian families to enter into civil marriage up to a popular vote--had violated the Constitutional guarantees of due process and equal protection by targeting a minority for the loss of rights enjoyed by the majority.
Though the ruling addressed the issue of putting the rights of minorities up to a vote, anti-gay groups promptly decried the ruling as falsely finding a constitutional right to gay sex and to gay marriage.
"Never in the history of America has a federal judge ruled that there is a federal constitutional right to same sex marriage," declared Brian Brown, the president of anti-gay group the National Organization for Marriage (NOM), which was a key proponent of Proposition 8 during the bitter and deeply divisive campaign that led up to its narrow approval at the ballot box. "The reason for this is simple," Brown continued--"there isn't!"
The Supreme Court had previously overturned state laws targeting gays. In the 1996 case Romer v. Evans, the court found Colorado's Amendment 2 unconstitutional; similarly, in the 2003 case Lawrence v. Texas, the court ruled that a Texas law criminalizing certain sexual practices between same-sex partners was unconstitutional, finding that sexual contact between consenting adults was covered by the guarantees of the 14th amendment.
The Colorado law banned any local government from extending anti-discrimination protections to gays. Of Amendment 2, the court noted that, "the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint." Further, the court found that the amendment's "sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests."
Similarly, Judge Walker found that, based upon the evidence presented in court by the pro-Proposition 8 side--which only called two witnesses to the stand, compared to the 18 witnesses who appeared on the pro-marriage equality side--the ballot initiative was motivated by "animus" directed at gays, rather than a genuine compelling interest. Walker wrote that the marriage ban imposed by Proposition 8 "both unconstitutionally burdens the exercise of a fundamental right to marry and creates an irrational classification on the basis of sexual orientation."
Moreover, Walker, wrote, proponents of Proposition 8 relied on "unfounded stereotypes and prejudices" about gays. "Proposition 8 played on the fear that exposure to homosexuality would turn children into homosexuals and that parents should dread having children who are not heterosexual," Walker noted in his 136-page opinion.
Even so, the banner of states' rights was raised by the anti-gay of the issue. NOM's chairwoman, Maggie Gallagher, declared that, "this case is headed for the U.S. Supreme Court, where the right of states to define marriage as being between one man and one woman will be affirmed--and if the Supreme Court fails, Congress has the final say."
That may not be strictly accurate in this case, or any case dealing with Constitutional issues; according to Answers.com, "When the Supreme Court interprets the meaning of a provision in the Constitution, its decision can be overturned directly only by a constitutional amendment. But decisions interpreting a federal statute can be overturned simply through the enactment of a new statute, so that Congress has a relatively easy means to reject the Court's reading of statutes."
The president of another anti-gay group, the American Family Association (AFA), decried Walker's ruling as "a tyrannical, abusive and utterly unconstitutional display of judicial arrogance."
Continued AFA president Tim Wildmon, "It's inexcusable for (Walker) to deprive the citizens of California of their right to govern themselves, and cavalierly trash the will of over seven million voters. This case never should even have entered his courtroom."
Added Wildmon, "The federal constitution nowhere establishes marriage policy, which means under the 10th Amendment that issue is reserved for the states."
Wildmon went on to address a factor that the mainstream press more or less glossed over in the United States: reports that Judge Walker is gay. Wildmon called it "extremely problematic that Judge Walker is a practicing homosexual himself," adding, "He should have recused himself from this case, because his judgment is clearly compromised by his own sexual proclivity.
"The fundamental issue here is whether homosexual conduct, with all its physical and psychological risks, should be promoted and endorsed by society," Wildmon went on. "That's why the people and elected officials accountable to the people should be setting marriage policy, not a black-robed tyrant whose own lifestyle choices make it impossible to believe he could be impartial." Wildmon went on to compare Walker's position as a reportedly gay judge hearing a case on marriage equality to that of "a judge who owns a porn studio being asked to rule on an anti-pornography statute. He'd have to recuse himself on conflict of interest grounds, and Judge Walker should have done that." Wildmon then called for Walker's impeachment.
The 10th amendment was also cited by radio host Mark Davis, in an op-ed published Aug. 5 at DallasNews.com. "When the Constitution is silent on an issue, the 10th amendment leaves it to the states or to the people. The Prop 8 vote did this in California. If pro-gay marriage forces had won, their wishes would deserve to prevail. It didn't, and now a judge who can't handle that vote seeks to subvert the public will with the left's tried and true tactic: the wholesale invention of rights that do not exist."
Davis also suggested that Walker has overreached his judicial authority in issuing his opinion. "Vaughn Walker is entitled to whatever views he likes on the issue of gay marriage. He is not entitled to use his power to force a state to agree with him," wrote Davis, before going on to claim that, contrary to Walker's opinion, homophobia played little role in the outcome at the ballot box in 2008. "There is not a speck of punitive homophobia in the principled wish to have law maintain a recognition that men and women are different--equal in stature in many societal ways, but not identical human creatures," Davis asserted.
Family Research Council president Tony Perkins joined right-wing pundits in predicting that the issue would turn into a socially fractious one on the order of abortion, declaring, "This lawsuit, should it be upheld on appeal and in the Supreme Court, would become the 'Roe v. Wade' of same-sex 'marriage,' " and going on to say that, "the Supreme Court's involvement would only make the issue more volatile," as happened with Roe v. Wade, the case that found that women have the right to assert control over their own reproductive decisions.
That prediction has also been voiced by some on the political left, who say that if left to the legislative process, marriage equality will eventually become the law of the land on the federal level--but who warn that a Supreme Court ruling could harden opposition, leading to permanent polarization on the issue.
"Marriage is recognized as a public institution, rather than a purely private one, because of its role in bringing together men and women for the reproduction of the human race and keeping them together to raise the children produced by their union," added Perkins. "The fact that homosexuals prefer not to enter into marriages as historically defined does not give them a right to change the definition of what a 'marriage' is."
The general counsel for Protect Marriage--a coalition that backed Proposition 8--also argued that the Constitution does not provide a right to marriage equality. "Federal precedent is clear that there is no constitutional right to same-sex marriage," Andy Pugno told the media, reported the San Francisco Chronicle on Aug. 5. Pugno went on to claim that in his ruling, Walker "has literally accused the majority of California voters of having ill and discriminatory intent."