There is no such thing as gay marriage, a federal judge ruled on Aug. 4, 2010, in a remarkable and unprecedented opinion that immediately reshaped the debate over homosexuality in America.
The decision all but guaranteed a showdown over the rights of gays to marry before the U.S. Supreme Court. Instead of “gay marriage,” said U.S. District Judge Vaughn Walker in a 138-page ruling, there is simply marriage — and everybody is entitled to it, no matter their gender or their would-be spouse’s.
Vaughn’s meticulously detailed and sometime plodding ruling struck down California’s 2008 ballot initiative, known as Prop 8, and restored the Golden State to the ranks of five other states where same-sex couples may wed. How soon those weddings can resume will depend on how Vaughn responds to a motion by Prop 8 proponents on the eve of his ruling asking him to stay the order until the Ninth Circuit Court of Appeals hears the case.
“The parties do not dispute that the right to marry is fundamental,” Vaughn wrote, declaring that the gay-marriage ban violates the Due Process clause of the U.S. Constitution. “The question presented here is whether plaintiffs seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right.”
He ruled that gay couples who want to marry are not asking for a new right but rather simply want the same right to marry that courts have so strongly defended for straight couples. Allowing gays to marry, he reasoned, doesn’t change marriage; it simply reflects a better understanding of gender and gender roles in society. “The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The exclusion [of gays from marriage] exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.”
The ruling also said any ban on gay marriage offends the U.S. Constitution’s Equal Protection Clause, primarily because, Walker wrote, there is no legitimate state interest in restricting marriage to heterosexuals. That thrilled gay-rights supporters, even the many legal experts who have loudly rebuked attorneys Ted Olson and David Boies for bringing the case when its reception by the current — and very conservative — Supreme Court is questionable at best. (Olson and Boies are odd bedfellows: they famously contested Bush v. Gore in the wake of the 2000 presidential election before the Supreme Court.)
“The opinion is strong, first because it is carefully grounded in the factual record made by the parties,” constitutional scholar Samuel Marcosson of the Louis D. Brandeis School of Law commented. “Judge Walker used the combination of fundamental rights and equal-protection analysis. I don’t think there is a better federal constitutional argument to be made. The question is whether we currently have a Supreme Court truly prepared to rule in favor of these arguments.”
Jennifer C. Pizer, director of the National Marriage Project for Lambda Legal, a gay-rights activist group, says the time to decide whether Olson and Boies were right to bring the case at this point will be when it gets to the Supreme Court. But for now, she says, she is encouraged by Vaughn’s decision to rule that both the Equal Protection and Due Process clauses of the Constitution forbid laws that ban gay marriage.
Walker’s decision sent powerful reverberations through conservative and religious circles who see in the judge’s decision an enormous judicial arrogance: that a single order can wipe away a constitutional amendment that passed by 600,000 votes in California. “I was not at all surprised by the decision, given the way things unfolded in court,” says the Rev. Albert Mohler, president of the Southern Baptist Theological Seminary in Louisville, Ky. “But after having read it, I am flabbergasted. Some say, ‘Where is the judicial activism you are so concerned about?’ Well, here it is right here. It’s stunning.”
Mohler stated that Walker’s decision to define marriage in a way that includes gay couples “upends [millennia] of human experience and teaching.” Beyond changing marriage, he says, Walker’s decision goes further in that it both advances the “normalization of homosexuality in America” and attempts to marginalize the role moral and religious beliefs can play in public life and in shaping the law of the land. “Once you take morality out of it, you invite a rational challenge to all manner of other laws that seek to govern our conduct in this society.”
But in crafting his opinion as he did, Walker attempted to fortify it in a way that may help it survive what is expected to be rough treatment at the hands of appellate judges and, especially, the Supreme Court Justices — should they eventually decide to take the case, probably by 2011 or 2012. For starters, Walker’s language was far less monumental and florid than the thunderous declarations found in some of the most sweeping opinions by state supreme courts — especially California’s — upholding gay marriage. Instead, he patiently laid out every argument put forth by proponents of Prop 8 for why the government was right to insist on restricting marriage to straight couples. And in every case, he ruled that the proffered reasons were entirely beyond the definition of marriage.
In scores of pages devoted to what might be the most detailed findings of fact in gay-marriage legal history, he asked again and again whether a ban on gay marriage has any rational basis. Do children raised by straight parents do better than those raised in gay households? No, he said. Does the history of marriage show that the ability to procreate was ever a requirement? No. Are homosexuals a distinct group, easily identifiable by themselves at least? Yes. Can sexual orientation be effectively defined, and is it consistent? Yes.
In the end, Walker wrote, laws that limit marriage to straights are rooted in beliefs about the moral appropriateness of homosexuality itself, something he said the Constitution does not permit. In doing so, Walker echoed language from the 2003 Lawrence v. Texas Supreme Court decision, which overturned state statutes making gay sex a crime, when he said it takes more than moral indignation to justify a law. “Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians,” he wrote. “The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.”
What happens next is anybody’s guess. The ruling is sufficiently novel that predicting its fate in the Ninth Circuit, despite that appellate bench’s comparatively liberal makeup, is impossible. But what is clear is that the appellate judges, and ultimately the U.S. Supreme Court, will be entirely free to toss out Walker’s legal conclusions. They will look at the case de novo (that is, anew) and won’t need to show any deference to his legal conclusions. But Lambda Legal’s Pizer is hopeful that the factual conclusions based on evidence produced during the trial — about the nature of homosexuality, about marriage itself and about discrimination against gays — will prove harder to ignore.
Mohler says he’s not sure how the courts will see it, though he has strong hopes they will overturn Walker’s decision. “But huge societal shifts do not ride merely on judicial opinions,” he stated. “The significance of this decision is in the massive boost in cultural momentum it provides that side. No matter what happens, this gives them a gust of wind at their backs.”
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