Prop 8 Decision: Justice or Judicial Activism?

Judge Walker issued a decision overturning Proposition 8. His lengthy opinion was rooted in judicial activism and in more than one opinion seems to be written to appeal to Justice Kennedy. He laid out a lengthy list of ‘facts’ that is accepted by liberals as a new litmus test to overcome in future challenges. And at the heart of his opinion is a claim that gay marriage is guaranteed by the 14th amendment.

Fundamentally, on all levels, Walker based a large part of his decision on the belief – yes, belief – that the voters who supported proposition 8 did so out of a conscious and deliberate intent to relegate homosexuals as second class citizens. The vote was not one defending cultural and religious concepts of traditional marriage but an attempt to defame, denigrate, and deny homosexuals. It wasn’t a vote for something, it was an atavistic reaction, a tyrannical and hateful act against something.  This may be a valid argument on Rachel Maddow’s show or chatting with Keith Olbermann (I admit I don’t know what either of their shows are called), but for a sitting judge to use this assumption to base his constitutional reasoning is frightening.

The Fourteenth Amendment, Article I reads as follows:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

I have emphasized the pertinent passage of this article. Mr. Walker makes a few leaps of faith that are not acceptable in a court of law. He applied the ‘liberty’ qualifier as the basis of his decision. By his reasoning, Prop 8 denied same-sex couples the right of traditional marriage and that this was a violation of the due process clause. In a state without civil union, this may be a valid argument – though it is a stretch. In a state like California – or Connecticut for that matter – it is a spurious argument. Equivalent does not have to mean the same. Equal does not have to be identical. Civil unions were compromises that were intended to satisfy the needs of all parties. Under the Civil Union, same sex couples had a mechanism to ensure they had access to the rights and privileges of traditional marriage. Health and life insurance, joint access to accounts, visitation rights in hospitals, prisons, and other restricted settings…essentially the same access to material and legal privileges. Obviously, this isn’t satisfactory for the gay community – for them the only compromise is one in which they get their way. And Judge Walker agreed with them.

Walker’s list of ‘facts’ is troubling – not only as they spring from his flawed interpretation. All of them are predicated on his belief that civil union is substantively different than marriage on a social and perceptual basis. Even if this is true, where is it the province of the court to engage in social engineering? As a jurist, his responsibility is not to look at motives but legal protections. It’s not his place to make a decision based on his belief that there is a perception of marriage as superior to civil union and that makes homosexuals feel bad. His responsibility is to examine the existing protections accorded under civil unions and determine if equal rights are assigned.

If Walker wants to engage in a little Constitutional justification, perhaps he should have examined the First Amendment. One of the arguments used in this case – and others – is the concept that marriage is not an instrument of the State, it is an instrument of the Divine. By mandating gay marriage, the state is imposing it’s will on the people’s freedom of religious exercise. Well, there are churches that support gay ministers and gay marriage, right? Sure there are. But if Walker thinks it’s acceptable for the state to encroach on the stated religious and moral beliefs of the majority in the interests of the minority, then the attitudes of these liberal churches are really inconsequential. Sorry.

The Citizen is already hearing a reader screaming ‘what about separate but equal’!!??  This isn’t the same. How many heterosexual couples are joined in what is essentially a civil union? The Citizen knows at least one heterosexual couple who simply went to City Hall one day, submitted their blood tests, got  their license and that was it. No ceremony, no reception, no fanfare. How many couples run off to Atlantic City and Vegas for what is undeniably identical to a civil union? Perhaps the playing field can be leveled.

Perhaps states can pass laws stating that all unions are civil unions. The idea of going to City Hall to get a marriage certificate is over. Everyone gets a civil union. If a couple wants the benefit of sacramental marriage, they would then find a church willing to confer the benefit to them. If the Unified  Rainbow Crunchy Church of the God-Goddess-Tree Spirit allows for gay marriage – fine. If the Catholic church doesn’t, well, that’s our prerogative too, isn’t it? By the same token, adoption agencies with religious affiliations should be allowed to set their criteria based not simply on civil union status but whether the union is recognized to be sacramental. Again, if a young woman is willing to place her child with the Unified Rainbow Crunchy Church of the God-Goddess-Tree Spirit, then she is accepting the fact that she is placing her unwanted child for placement in a family that celebrates love between couples with legs and roots… or whatever. By the same token, a young woman can place her unwanted child with a Catholic adoption agency, knowing that the child will be placed in a home that embraces Catholic values. Of course, this would never fly with the homosexual minority – they would sue for unrestricted access to everything they want.

It will only be a matter of time before this case lands in the Supreme Court. Kennedy leans liberal when it comes to individual rights, and even Scalia can be a cipher in such cases. The 9th Circus Court – and no, that’s not a typo – is irrelevant. Unless the lottery system assigns an unlikely panel, the liberal appeals court will enthusiastically rubberstamp Walker’s decision – after amplifying the arguments that are likely to sway the fence-sitting Scalia and Kennedy. After all, if you scream an opinion long enough everyone will accept it as a fact, no?


There’s not much we can do save support the lawyers fighting to defend marriage. The National Organization for Marriage has a support page asking for donors. The Appeals Court largely ignores the public and the Supreme Court – well, the Supreme Court rarely considers public sentiment. At least overtly. Letter writing campaigns will have limited success. What will succeed is the amount of money that pro-marriage legal teams have at their disposal. If you are able to donate, do so. If not, pray.

A final note. There will likely be those who will castigate me as being hateful and mean-spirited. Nothing can be further from the truth. Nowhere do I vilify homosexuals as less then human or undeserving of protections under the law. I do take umbrage to your hubris. Homosexuals seem to insist that they have the constitutional right to anything they want – regardless of others. This culture of entitlement cuts across the spectrum – many groups of people scream that they are entitled. I leave you with this.

Try living as an openly gay couple in Kuwait or Pakistan. What is offered may not be what you want.

But deny that – legally speaking – that it is fair.

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