No Rational Basis

by Robert

That’s the sum of Judge Walker’s argument in his decision overturning California’s gay marriage ban (which also seem to nicely characterize the religious beliefs of the ban’s proponents, but I digress…).  To get a good sense why Walker came to that conclusion, here is an excerpt from his decision:

Proponents argued that Proposition 8 should be evaluated solely by considering its language and its consistency with the “central purpose of marriage, in California and everywhere else,…to promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation.”…

At oral argument on proponents’ motion for summary judgment, the court posed to proponents’ counsel the assumption that “the state’s interest in marriage is procreative” and inquired how permitting same-sex marriage impairs or adversely affects that interest. Counsel replied that the inquiry was “not the legally relevant question,” but when pressed for an answer, counsel replied: “Your honor, my answer is: I don’t know. I don’t know.”…

Despite this response, proponents in their trial brief promised to “demonstrate that redefining marriage to encompass same-sex relationships” would effect some twenty-three specific harmful consequences. At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage. Blankenhorn’s testimony…provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate. During closing arguments, proponents again focused on the contention that “responsible procreation is really at the heart of society’s interest in regulating marriage.” When asked to identify the evidence at trial that supported this contention, proponents’ counsel replied, “you don’t have to have evidence of this point.” (h/t Reason Magazine)

Just the clueless blathering of a liberal San Francisco judge?  Oh, wait

[R]ecommended by Ed Meese, [Walker was] appointed by Ronald Reagan, and opposed by Alan Cranston, Nancy Pelosi, Edward Kennedy, and the leading gay activist groups.

Ouch.  When your ideological bedfellows essentially say you’re full of hot air, that’s gotta hurt.

But…but…won’t someone think of the will of the majority?

This objection, especially when coming from people who should know better, floors me.  I can only think their intention is demagoguery.  The answer to them can be made in three words:  Bill of Rights*.  If the will of the majority is sacrosanct, then the Bill of Rights is superfluous.  Its whole raison d’être is to protect individual rights, particularly those of minorities.  If rights are subject to the whim of transient majorities, then why call them rights rather than privileges?  Coming shortly upon the heals of major decisions regarding the second amendment and gun ownership, supported by many of the same groups now wailing about the reversal of the gay marriage ban, one would think the objection would not even be raised.  The gumption that produces this sort of selective amnesia is breathtaking to behold.

Yet, as noted on NPR this morning, Judge Walker was careful not to couch his decision primarily in terms of law, but of evidence and “findings of fact.”  This makes it less likely that an appeals court will overturn the decision.  As is obvious from the completely vacuous arguments of the defendants, it was easy for Judge Walker to go that route.  It’s almost as if the defendants’ case was entirely…faith-based.

Eventually, those who argue against same-sex marriage will lose, just as they lost against interracial marriage equality decades ago.  As then, there simply aren’t any good reasons to deny any loving adult couple from enjoying the same right most everyone else does – a fact Judge Walker made stellarly clear.  But religiously-motivated action is very rarely ever founded on reason or evidence, is it?  This is what makes it so harmful, and why many seek to contain its pernicious effects to believers themselves.

*Yes, I realize Judge Walker referred to the equal protection clause, which is part of the Fourteenth Amendment, and not any part of the Bill of Rights, which is the collective name for the first Ten Amendments, but the basic principle is the same: the enumeration of rights to protect against, in de Tocqueville’s memorable phrase, the “tyranny of the majority.”

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