With regard to the first question, the evidence is overwhelming that the Walker ruling was neither impartial nor constitutionally sound. Judge Walker is not only gay, but also has a long-term male domestic partner whom he would presumably be eligible to marry under his own ruling. This shows a personal involvement in the case which should have led him to recuse himself. The judge's conduct during the entire trial was so blatantly prejudiced against the defense that the outcome was a surprise to no one. Ed Whelan, a constitutional law expert who writes for National Review, has listed the numerous actions Judge Walker took throughout the trial that show his extreme bias (click on the links in the article for more detail about each point.) Less than 30 pages of the 135-page ruling have anything remotely resembling a legal argument; most of the ruling is devoted to "findings of fact" and a summary of the trial proceedings. Most of those supposed "findings of fact" are not facts at all, but simply express the judge's opinion that Proposition 8 stigmatizes homosexuality. Whelan also lists out the key legal arguments in the thin "conclusions of law" section, which mostly consist of sweeping and highly controversial claims about the nature of marriage with no supporting evidence or historical precedent to back them up. Whelan's brief parenthetical commentary demonstrates how utterly flimsy those arguments really are.
Essentially, the ruling boils down to the central claim that it is discriminatory for same-sex couples to not be able to marry. While I disagree with this argument, I can understand how it could be used to justify a law permitting same-sex marriage. But it can't be used to justify imposing such a law through the court system. The court isn't permitted to make law; it's only permitted to strike down laws that are unconstitutional. Therefore, to make this ruling, the court is at least implicitly inventing a constitutional civil right for gay marriage. And we all know the Constitution does not guarantee such a right. If we are going to consistently follow this line of reasoning (anybody who wants to marry has a constitutional right to do so) then I don't see how the courts can avoid imposing legalized polygamy, incest, pedophilia, and bestiality as well. To me, this ruling is less about gay marriage than it is about unelected judges making law from the bench. Liberals believe that because the Constitution is a living document, judges can invent new provisions to the Constitution whenever they feel it serves their definition of justice. Roe v. Wade was the same thing. There's no constitutional right to abortion, but the courts invented it because they didn't like existing law. It is very dangerous for courts to write laws because they are unelected and appointed for life and thus are unaccountable to the people.
The second key question is whether gay marriage should be legalized. To me, this issue is not really about equality, despite the claims of supporters. Gay couples already have full rights and freedom to pursue whatever lifestyle they want. No one is keeping them from having sex or buying a house together or having a commitment ceremony. A lot of states (including California) have civil unions or domestic partnership laws, which provide these couples with virtually every financial benefit that a married couple has. I am generally supportive of such laws. No, the issue here is not equality. The issue is forcing society to give their stamp of approval to the gay lifestyle. Gay rights activists want to force society to accept and approve of what they are doing, and in so doing to fundamentally redefine the institution of marriage that has existed in virtually every culture from time immemorial as the union between a man and a woman. Judge Walker's opinion is a frontal assault on the entire family structure, not just marriage. He claims that it is "beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes" and slams gender distinctions as outdated "artifacts."
Princeton professor and legal scholar Robert George recently wrote an editorial in the Wall Street Journal on the topic of same-sex marriage. While the major point of Dr. George's article is to argue that the legislature and not the courts should settle the question of gay marriage, he also makes some excellent points about the nature of marriage itself which I will quote from at length:
"Lawyers challenging traditional marriage laws liken their cause to Loving v. Virginia (which invalidated laws against interracial marriages), insinuating that conjugal-marriage supporters are bigots. This is ludicrous and offensive, and no one should hesitate to say so.
"The definition of marriage was not at stake in Loving. Everyone agreed that interracial marriages were marriages. Racists just wanted to ban them as part of the evil regime of white supremacy that the equal protection clause was designed to destroy.
"Opponents of racist laws in Loving did not question the idea, deeply embodied in our law and its shaping philosophical tradition, of marriage as a union that takes its distinctive character from being founded, unlike other friendships, on bodily unity of the kind that sometimes generates new life. This unity is why marriage, in our legal tradition, is consummated only by acts that are generative in kind. Such acts unite husband and wife at the most fundamental level and thus legally consummate marriage whether or not they are generative in effect, and even when conception is not sought.
"Of course, marital intercourse often does produce babies, and marriage is the form of relationship that is uniquely apt for childrearing (which is why, unlike baptisms and bar mitzvahs, it is a matter of vital public concern). But as a comprehensive sharing of life—an emotional and biological union—marriage has value in itself and not merely as a means to procreation. This explains why our law has historically permitted annulment of marriage for non-consummation, but not for infertility; and why acts of sodomy, even between legally wed spouses, have never been recognized as consummating marriages.
"Only this understanding makes sense of all the norms—annulability for non-consummation, the pledge of permanence, monogamy, sexual exclusivity—that shape marriage as we know it and that our law reflects. And only this view can explain why the state should regulate marriage (as opposed to ordinary friendships) at all—to make it more likely that, wherever possible, children are reared in the context of the bond between the parents whose sexual union gave them life.
"If marriage is redefined, its connection to organic bodily union—and thus to procreation—will be undermined. It will increasingly be understood as an emotional union for the sake of adult satisfaction that is served by mutually agreeable sexual play. But there is no reason that primarily emotional unions like friendships should be permanent, exclusive, limited to two, or legally regulated at all. Thus, there will remain no principled basis for upholding marital norms like monogamy.
"A veneer of sentiment may prevent these norms from collapsing—but only temporarily. The marriage culture, already wounded by widespread divorce, nonmarital cohabitation and out-of-wedlock childbearing will fare no better than it has in those European societies that were in the vanguard of sexual “enlightenment.” And the primary victims of a weakened marriage culture are always children and those in the poorest, most vulnerable sectors of society.
"Candid and clear-thinking advocates of redefining marriage recognize that doing so entails abandoning norms such as monogamy. In a 2006 statement entitled “Beyond Same-Sex Marriage,” over 300 lesbian, gay, and allied activists, educators, lawyers, and community organizers—including Gloria Steinem, Barbara Ehrenreich, and prominent Yale, Columbia and Georgetown professors—call for legally recognizing multiple sex partner (“polyamorous”) relationships. Their logic is unassailable once the historic definition of marriage is overthrown."
As a Christian, I believe that marriage was instituted by God at creation, and therefore is holy and sacred. However, as Dr. George points out above, I think it's important to note that marriage has great societal benefits above and beyond its religious significance. Most societies outside of our country's Judeo-Christian heritage have also recognized marriage as a valuable institution throughout history. Even if you are not a Christian, you should be able to appreciate the positive effects marriage has had on our culture -- protecting women through commitment vows, protecting children by providing a stable family structure with a mother and a father, encouraging responsibility and discouraging promiscuity, etc. Our country's strong marriage culture and traditional family values have provided the moral framework for a healthy, free, productive, and prosperous society.
It's important to understand that gay rights activists, who have been pushing for gay marriage for decades, hate Judeo-Christian values because they stand for traditional marriage and a traditional family. If you don't believe this, just read Judge Walker's opinion, which claims that opponents of gay marriage are "irrational bigots." If same-sex marriage becomes law, then it's only a matter of time before people who believe in the traditional definition of marriage and the family (you know, that it is actually healthy for kids to grow up with a mom and a dad) will be persecuted for hatred and discrimination. It already happened in California in the wake of the Prop 8 vote, when newspapers published the names and addresses of people who donated money to Prop 8 and those people's families, homes, and businesses were targeted and threatened. It has already happened in Washington, DC, where Catholic adoption agencies have been forced to shut down because of their refusal to place children into gay adopting families. It has already happened in Canada, where religious ministers can be fined or jailed for committing a hate crime if they preach from the Bible that homosexuality is a sin. If gay marriage is legalized, then justices of the peace or ministers who refuse to officiate gay marriages will likely face severe legal penalties for discrimination, as will anyone who refuses to recognize or acknowledge the legitimacy of same-sex marriages.
Thus, in the name of tolerance, the government is redefining an institution that existed thousands of years before said government even came into being, and is forcing all Americans to accept and acknowledge this redefinition or face accusations (and possible criminal charges) of bigotry and discrimination. If Judge Walker's ruling stands and his claims about the family become widely accepted, they spell the end of traditional marriage and the traditional family as we know it. Marriage and the family have been a key foundation of our country ever since its inception, and if that foundation crumbles I don't see how our society as we know it can long survive. Major cracks have already developed in that foundation as divorce rates have skyrocketed and out-of-wedlock births have soared, but if Judge Walker has his way, it's only going to get worse.
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