The primitive notion that marriage is between a man and a woman
violates the U.S. Constitution. While that might have come as a
surprise to everyone involved in writing and ratifying the
Constitution — and any of its subsequent amendments — the
thought comes naturally to U.S. District Chief Judge Vaughn R.
Walker.
In striking down California’s Proposition 8, the man who knows
the Constitution better than James Madison decreed the state “has
no interest in differentiating between same-sex and opposite-sex
unions.” For all its 136 pages, Walker’s Perry v.
Schwarzenegger
decision reads like an extended op-ed in favor of the legal
redefinition of marriage. Consequently, it makes for a much
better polemic than exercise in constitutional law.
California has been down this road before. In 2000, the state
passed Proposition 22, with language nearly identical to the
federal Defense of Marriage Act, by more than 61 percent of the
vote. Eight years later, the state supreme court struck down the
ballot initiative and mandated unisex matrimony.
So Californians responded with another initiative aimed at
amending the state constitution in order to overturn this
decision. This time the result was closer, but even with
prejudicial wording and massive Democratic turnout in the
2008 election, Proposition 8 won with 52 percent of the vote. But
now federal judges hold the only votes that count.
Bear in mind that California democratically enacted a state
domestic partners law. Walker himself acknowledged in his
decision that “domestic partnerships offer same-sex couples
almost all of the rights and responsibilities associated with
marriage.” The state of California does not interfere in the
relationships of gays and lesbians. It does not make it difficult
for them share their property, take care of each other, or live
their lives as they see fit.
Yet none of that is sufficient to confer upon same-sex
relationships the “social meaning” Walker believes they deserve.
“The record reflects that marriage is a culturally superior
status compared to a domestic partnership,” he opined, calling
domestic partnerships “a substitute and inferior institution.”
The judge ends up saying of domestic partnerships the same thing
conservative Christians say of a commitment ceremony conducted at
the local Metropolitan Community Church: “A domestic partnership
is not a marriage.”
The central logic of traditional marriage is this: it takes one
man and one woman to naturally produce a child. Such unions were
given exalted social status not to express hatred but to regulate
sex that often results in the birth of new human beings, making
adults responsible for the lives they create and men responsible
for the families they form. While there have always been
childless marriages, this does not undermine the basis of family
law any more than corporate law is undercut by the failure of
some corporations to turn a profit.
Vaughn Walker and many others passionately believe this old
definition is inadequate for today’s society. Though millions of
Americans answer to a higher authority than Judge Walker, not
everyone believes in Judeo-Christian sexual morality. Women don’t
necessarily need men, not even the fathers of their children.
Children can be created by means other than conventional
heterosexual sex. Two men or two women can fall in love and form
intimate relationships. As Frank Sinatra crooned, “Love and
marriage, love and marriage/Go together like a horse and
carriage.”
Given time (and recent trends in public opinion), it is possible
that Walker’s viewpoint could have won over a majority of
Americans. We may never know. The Perry decision will
now work its way through the federal judiciary, likely all the
way up to the Supreme Court. The current Court is probably not
ready to hand down the Roe v. Wade of gay marriage, with
an important caveat: The case will be decided by Justice Anthony
Kennedy, whose logic in Romer v. Evans and Lawrence
v. Texas
lends itself well to upholding the anti-Prop 8 decision.
We all know how well the first Roe v. Wade decision did
when it came to settling the controversy over abortion. This
ruling would have to override multiple state constitutions and
the recent votes of over 30 states reaffirming traditional
marriage.
Walker’s defenders would say that this is how it should be, that
the majority should not be able to vote on the fundamental rights
of a minority. But the Perry decision was less about
rights than social recognition. It is not about whether the
government will let people live together or love one another. It
is about what relationships will be privileged above others as
marriages — and make no mistake, some relationships will still
be legally privileged above others even under a regime of
same-sex marriage.
That makes this is a debate in which all Americans have standing,
not just a few. And certainly not just a tiny, gavel-wielding
clique clad in black robes.
