COMMENTARY
GAY MARRIAGE RULING REFLECTS JUDGE’S PREFERENCE
By Jack M. Pinscher
August 8, 2010 - In tossing out the California referendum that outlawed same sex marriage, Judge Vaughn Walker,
who is gay, called the ability to marry “a fundamental right that cannot be denied to people without a compelling
rationale.” He said the California law violated that right and discriminated on the
basis of both sex and sexual orientation in violation of the equal protection clause
of the U.S. Constitution.
The first thing that should be noted is that California law does not violate the equal
protection clause despite Judge Walker’s assertion. The California law permits a
homosexual to marry someone of the opposite sex -- the same right enjoyed by
everyone else. He may not want to, but that does not make him a victim of illegal
discrimination because it is his choice. Nor does the prohibition against marrying
someone of his own sex make him a victim of discrimination any more than a man
who is forbidden to marry his daughter.
By Jack M. Pinscher
August 8, 2010 - In tossing out the California referendum that outlawed same sex marriage, Judge Vaughn Walker,
who is gay, called the ability to marry “a fundamental right that cannot be denied to people without a compelling
rationale.” He said the California law violated that right and discriminated on the
basis of both sex and sexual orientation in violation of the equal protection clause
of the U.S. Constitution.
The first thing that should be noted is that California law does not violate the equal
protection clause despite Judge Walker’s assertion. The California law permits a
homosexual to marry someone of the opposite sex -- the same right enjoyed by
everyone else. He may not want to, but that does not make him a victim of illegal
discrimination because it is his choice. Nor does the prohibition against marrying
someone of his own sex make him a victim of discrimination any more than a man
who is forbidden to marry his daughter.
The state is not under a
constitutional obligation to
endorse, recognize or support
every relationship individuals
may choose to establish with
one another.
constitutional obligation to
endorse, recognize or support
every relationship individuals
may choose to establish with
one another.
The state is not under a constitutional obligation to endorse, recognize or
support every relationship individuals may choose to establish with one
another. These are personal choices and not automatically the business
of the state to consider. The historic reality is that marriage does not
exist to satisfy the whims of individuals. Individuals are free to exercise
their personal, sexual preferences without the involvement of the state.
But if they want the community to recognize, solemnize, encourage and
reward a relationship, here has to be some benefit to the community.
support every relationship individuals may choose to establish with one
another. These are personal choices and not automatically the business
of the state to consider. The historic reality is that marriage does not
exist to satisfy the whims of individuals. Individuals are free to exercise
their personal, sexual preferences without the involvement of the state.
But if they want the community to recognize, solemnize, encourage and
reward a relationship, here has to be some benefit to the community.
As human civilizations have done for thousands of years, the states of the US have determined that permanent,
monogamous, heterosexual relationships benefit the community, and, by the institution of marriage, confer benefits
on that relationship. The Federal government acts in a similar manner by allowing a tax deduction for contributions
to educational, charitable and religious organizations. It also allows a tax deduction for home mortgage interest in
the belief that home ownership enhances community stability and personal responsibility.
The Supreme Court, in 1965, struck down a Connecticut statute forbidding the use of contraceptives by married
people (Griswold v. Conn.). While the state may not regulate sexual relations between man and wife, it may define
and regulate the institution of marriage. It may, for example, prohibit marriage between close relatives, or by
children. It may bar multi-party marriages, or (who knows where it will end) union between a person and an animal.
If the state may not define and elevate the kind of relationships in which the community has a stake, if all
relationships, however bizarre, ephemeral and frivolous, enjoy equal status, if everything is marriage, the term
means nothing and we have effectively abolished marriage.
Judge Walker, in a display of towering arrogance, said that California "has no interest in differentiating between
same-sex and opposite-sex unions." He is clearly expressing a personal preference rather than citing a fact. If the
citizens of California had no interest in distinguishing between same-sex and opposite-sex marriages, the referendum
banning same-sex marriage would have failed.
The judge also asserted that "moral and religious views form the only basis for a belief that same-sex couples are
different from opposite-sex couples." Obviously, he does not consider morality an acceptable basis for legislation.
A similar argument was advanced in a 1983 case challenging the Navy’s policy of discharging homosexuals
(Dronenburg v Zech). The Federal court for the District of Columbia noted that this theory “attacks the very
predicate of democratic government.” The court continued, this theory “would, in fact, destroy the basis for much
of the most valued legislation our society has. It would, for example, render legislation about civil rights, worker
safety, the preservation of the environment, and much more, unconstitutional. In each of these areas, legislative
majorities have made moral choices.”
Walker appears to be of the opinion that morality is indistinguishable from bigotry. In fact, if his opinion were taken
seriously, it would put much of the criminal law in jeopardy of being struck down. If Joe is big enough and fast
enough to catch Jim, beat him up and take his money, who is the majority to say he shouldn’t be allowed to do it.
One of the most pernicious notions to emerge in recent years is that no one should impose values on somebody
else. But in fact that is exactly what civilization is, the imposition of values. The government must support the
cultural values to which society has historically subscribed and which are the moral bases of its laws. That's why we
may not steal, kill, or defraud each other, or refuse to defend the country. And that's why there are rules about
marriage.
In the Griswold case, Justice Arthur Goldberg wrote, in a concurring opinion. "In determining which rights are
fundamental, judges . . . must look to the 'tradition and (collective) conscience of our people' to determine whether
a principle is 'so rooted (there) . . . as to be ranked as fundamental." (Snyder v. Mass). Our history and traditions
reveals no acceptance of same-sex marriages.
monogamous, heterosexual relationships benefit the community, and, by the institution of marriage, confer benefits
on that relationship. The Federal government acts in a similar manner by allowing a tax deduction for contributions
to educational, charitable and religious organizations. It also allows a tax deduction for home mortgage interest in
the belief that home ownership enhances community stability and personal responsibility.
The Supreme Court, in 1965, struck down a Connecticut statute forbidding the use of contraceptives by married
people (Griswold v. Conn.). While the state may not regulate sexual relations between man and wife, it may define
and regulate the institution of marriage. It may, for example, prohibit marriage between close relatives, or by
children. It may bar multi-party marriages, or (who knows where it will end) union between a person and an animal.
If the state may not define and elevate the kind of relationships in which the community has a stake, if all
relationships, however bizarre, ephemeral and frivolous, enjoy equal status, if everything is marriage, the term
means nothing and we have effectively abolished marriage.
Judge Walker, in a display of towering arrogance, said that California "has no interest in differentiating between
same-sex and opposite-sex unions." He is clearly expressing a personal preference rather than citing a fact. If the
citizens of California had no interest in distinguishing between same-sex and opposite-sex marriages, the referendum
banning same-sex marriage would have failed.
The judge also asserted that "moral and religious views form the only basis for a belief that same-sex couples are
different from opposite-sex couples." Obviously, he does not consider morality an acceptable basis for legislation.
A similar argument was advanced in a 1983 case challenging the Navy’s policy of discharging homosexuals
(Dronenburg v Zech). The Federal court for the District of Columbia noted that this theory “attacks the very
predicate of democratic government.” The court continued, this theory “would, in fact, destroy the basis for much
of the most valued legislation our society has. It would, for example, render legislation about civil rights, worker
safety, the preservation of the environment, and much more, unconstitutional. In each of these areas, legislative
majorities have made moral choices.”
Walker appears to be of the opinion that morality is indistinguishable from bigotry. In fact, if his opinion were taken
seriously, it would put much of the criminal law in jeopardy of being struck down. If Joe is big enough and fast
enough to catch Jim, beat him up and take his money, who is the majority to say he shouldn’t be allowed to do it.
One of the most pernicious notions to emerge in recent years is that no one should impose values on somebody
else. But in fact that is exactly what civilization is, the imposition of values. The government must support the
cultural values to which society has historically subscribed and which are the moral bases of its laws. That's why we
may not steal, kill, or defraud each other, or refuse to defend the country. And that's why there are rules about
marriage.
In the Griswold case, Justice Arthur Goldberg wrote, in a concurring opinion. "In determining which rights are
fundamental, judges . . . must look to the 'tradition and (collective) conscience of our people' to determine whether
a principle is 'so rooted (there) . . . as to be ranked as fundamental." (Snyder v. Mass). Our history and traditions
reveals no acceptance of same-sex marriages.