Yesterday, in a glaring example of judicial activism, Chief US District Judge Vaughn Walker struck down California’s law defining marriage as between a man and a woman. In striking down the law, Judge Walker, himself an open homosexual who should probably have recused himself from the case (http://bit.ly/9GBb8o), ignored both state and federal precedent as well as thousands of years of tradition. Judge Walker also discounted the more than 7 million votes that were cast in favor of the law (http://bit.ly/a6IPXt).
California’s first law defining marriage was ruled unconstitutional in 2005 (http://bit.ly/auzafB). In response, marriage defenders mounted a campaign to place Prop 8 on the ballot. The measure passed with more than 52% of the vote in 2008 and amended California’s constitution to define marriage as between a man and a woman.
Contrary to popular opinion, the measure did not ban gay marriage. It preserved marriage as it always had been throughout history as between a man and a woman. Homosexuals could still marry provided they married a person of the opposite sex. They had exactly the same rights to marriage as anyone else. Since California’s constitution was amended to define marriage as between a man and a woman, the law was constitutional with respect to the California constitution.
The law was challenged immediately after its passage. Supporters of Prop 8 were subjected to harassment and intimidation by the measure’s opponents. This included vandalism, threats and acts of violence (http://bit.ly/b5h1pR).
The law was also consistent with federal law. In 1996, the Defense of Marriage Act (DOMA) was passed by Congress and signed by President Clinton. In part, the DOMA states:
“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife” (http://bit.ly/b5h1pR).
The law goes on to state that:
“No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship” (http://bit.ly/9biEOa). In essence, if one state passes a same-sex marriage law, other states are not required to recognize it.
The federal DOMA has been repeatedly challenged and passed constitutional muster. Only recently, on July 8 2010, has a federal judge from Massachusetts ruled the DOMA unconstitutional on two separate cases. Judge Joseph Tauro cited the tenth amendment (state’s rights) and the fourteenth amendment (equal protection clause) in his ruling (http://bit.ly/bbQd5V). Nevertheless, the Supreme Court is likely to hear one or more of the cases.
Judge Walker’s ruling was also not supported by common law, history or tradition. Throughout recorded history in all known cultures, marriage has always been a special relationship between a man and a woman. Gay marriage laws did not exist before this century, although homosexual relationships have been around since ancient times and commitment ceremonies date at least to the 1960s (http://n.pr/ajtzeA).
When Judge Walker made his ruling, he chose to overlook all of this. In fact, Judge Walker chose to arbitrarily decide, in opposition to most of the United States, that “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 evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in
order to marry” (http://bit.ly/bQ20vc).
In other words, contrary to the beliefs of the vast majority of Americans, Judge Walker has now decided that gender is an outmoded means for choosing a marriage partner. In his enlightened view, our understanding of marriage and gender has evolved to the point where one does not directly affect the other. In his view, the need for two people of separate genders to create a stable family and procreate is not only not common sense or conventional wisdom; it is not in evidence at all!
Still, California has not yet joined the ranks of the gay marriage states. Judge Walker did stay his ruling in preparation for the inevitable appeals. At present, five states (Iowa, Connecticut, Massachusetts, New Hampshire, and Vermont). In each case, the change was mandated by one or a small group of individual judges. Where the people have had an opportunity to vote, gay marriage laws have always failed. In Maine, the legislature passed a gay marriage law, which was then overturned by a popular vote (http://bit.ly/94xuw7).
Georgia, like thirty other states, also has a constitutional amendment defining marriage as between one man and one woman (http://bit.ly/94xuw7). In all thirty-nine states have defense of marriage laws on the books. The danger of the California ruling is that, if upheld by the Supreme Court, it would render all of these laws unconstitutional. What same-sex marriage advocates were unable to win at the ballot box, they would have mandated through the judicial activism of individual federal judges.