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.