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Judge Vaughn Walker's Prop 8 Decision Is Flawed

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A federal judge in San Francisco decided last week that gays and lesbians have a constitutional right to marry, striking down Proposition 8, the voter approved ballot measure that banned same-sex unions.vote no prop 8 poster

U.S. District Chief Judge Vaughn R. Walker said Proposition 8, passed by voters in November 2008, violated the federal constitutional rights of gays and lesbians to marry the partners of their choice. His ruling is expected to be appealed to the U.S. 9th Circuit Court of Appeals, and will ultimately be decided by to the U.S. Supreme Court.

marriage 1 man 1 woman poster

Before we examine what will be the fate of this same-sex marriage controversy, a look at the U.S. Constitution is worthwhile.

Under the U.S. Constitution, both the national and state governments are granted certain exclusive powers and share other powers. For instance, only the national government can print money and declare war. However, powers not granted to the national government are reserved for the states and are therefore called Reserved Powers. Reserve powers include the power to establish local governments and the power to issue licenses, such as hunting, driving and yes, marriage.

The U.S. Constitution does not mention marriage anywhere in the document. Therefore, states have traditionally defined what is marriage.

Okay, so if individual states have the power to create marriage laws, why is Prop 8 being judged in a federal court? Because the opponents of Prop 8 claim that a ban on same-sex marriage violates civil liberties.

Federal Challenges of State Marriage Laws

In numerous cases, the Supreme Court has declared that marriage is a fundamental civil right, most famously in Loving v. Virginia (1967) where the Court struck down a state law that prohibited interracial marriages.  The strongest language that is helpful to gay rights advocates appears in the case of Zablocki v. Redhail (1978), where the Court ruled that the state could not prohibit a man from marrying simply because he was behind in his child support.  Writing for the majority, Justice Thurgood Marshall stated that the right to marry is of fundamental importance for all individuals. Opponents of Prop 8 are using this rationale to overturn Prop 8—to deny somebody the right to marry somebody of the same sex is a violation of the fundamental right to marriage.

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U.S. District Judge Vaughn Walker overturned California’s Proposition 8 on the grounds California has a “constitutional obligation to provide marriages on an equal basis.” Judge Walker finds California’s Prop 8 violates both the Due Process and the Equal Protection clauses under the Fourteenth Amendment.

The Case Against Judge Walker

I am going to predict the Supreme Court will find Judge Vaughn Walker’s decision flawed. Here is why.

My reasoning is not based on religious or ethic reasons.  I am neither omnipotent nor virtuous enough to judge such behavior as morally sound or not. If you care to read about them, you can look at them here. Instead, I’ll illustrate why federally protected same sex marriage will not pass the test of somebody with a clear understanding of the U.S. Constitution.

One difficulty with banning Prop 8 using the Due Process route is that it requires treating marriage as a fundamental right. Walker writes, “[t]o determine whether a right is fundamental under the Due Process Clause, the court inquiries into whether the right is rooted ‘in our Nation’s history, legal traditions, and practices.’”

No one in this lawsuit disputes that the right to marry meets the above criteria of being rooted in our history, legal traditions, and practices. So the question is whether same-sex marriage also meets that test.

A Fundamental Right or a New Right?

One could make the argument that the opponents of Prop 8 are actually seeking recognition of a new right – the right to marry somebody of one’s own sex. This certainly does not pass the above criteria as a fundamental right. 

Mincing words aside; however, I think the real issue with due process is whether a person has the right to redefine marriage. The district court tried to deal with that issue by declaring its own definition of marriage: “Marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household.”

Why only two? There are many countries across the world practice polygamy. Islam, for example, permits a man to have four wives. There are other problems as well. In many countries, a person can be married at an age that is considered too young in America to give consent. The unrestricted right to marry anyone is not protected by our Constitution. American laws against polygamy, child-marriage and incest do not run afoul of the Constitution.

However, this could change once marriage is no longer confined to a man and a woman, and the sole criterion becomes the presence of "love" and "mutual commitment. Once this paradigm shift occurs, it is impossible to exclude virtually any "relationship" between two or more partners of either sex.  Once you make a special case for one type of sexual preference (same-sex marriage), based on the Fourteenth Amendment’s idea of equal protection under the law, one would have to permit all types of relationships.

Opponents of Prop 8 might use the precedent of Loving v. Virginia to attack my explanation above. Didn’t this case already redefine the definition of marriage, allowing interracial marriages?

No.  Allowing a black man to marry a white woman, or vice versa, does not change the fundamental definition of marriage, which requires a man and a woman. Homosexual marriage, on the other hand, attempts to discard this most basic requirement for marriage.

The Constitution protects the fundamental right for one man and one woman to get married, so long as they are not close relatives and are the age of consent. That’s why laws that don’t permit interracial marriage are unconstitutional, but a law saying that a man cannot marry another man is not unconstitutional.

More Problems For Judge Walker’s Equal Protection Argument

Judge Walker’s Equal Protection argument does not make any sense in light of the historical evidence of the drafting of the Equal Protection Clause in the Fourteenth Amendment. Neither of the two committee chairmen who oversaw the Amendment’s drafting, Representative Thaddeus Stevens and Senator Jacob M. Howard, introduced the Equal Protection Clause to their respective chambers as having anything to do with social equality, but everything to do with equality under the law before the tribunals of justice. The authors of the Fourteenth Amendment were not considering anything to do with social equality in civil laws. The laws demanding Equal Protection are those laws States are required to guarantee to all persons, and those laws are laws of Due Process in the protection of life, liberty and property.

This explains why the primary sponsor and author of the Fourteenth Amendment’s first section, Representative John A. Bingham of Ohio, who had been dubbed the James Madison of the Fourteenth Amendment, used the word “tribunal” when discussing the concept of Equal Protection under the Fourteenth Amendment and not general civil laws. In 1870 he made this very clear when he said no state may deny the equal protection “not of its laws, but of the laws,” i.e., law of the land (due process).

In conclusion, hopefully I made solid case why Judge Walker’s attempt to invalidate Prop 8 under Due Process and Equal Protection clauses is flawed. I predict that the U.S. Supreme Court will hear this case, and by a 5-4 decision, will reach the same conclusion that I did.

Five Supreme Court Justices are conservative (if you included Anthony Kennedy) and they generally follow a strict constructionist view of the Constitution, meaning that one examines the words of the Constitution through their original meaning and historical context, as opposed to the four liberal justices who believe in the idea of a Living Constitution, which suggests that the Constitution’s meaning should change as society changes.

These five justices will conclude that no one is being denied any fundamental right they are entitled to who meet the qualifications of marriage. States will continue to have the right create their own marriage laws, and Prop 8 will once again forbid same sex marriage.