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.”

{ 9 comments… read them below or add one }

Eric August 5, 2010 at 10:06 pm

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.

The problem with this is that same-sex marriage offers no rights to same-sex partners that a civil union didn’t already provide. Nothing has been gained by this decision. That is why the same CA supreme court justices that overturned the ban the first time around upheld prop 8 when it was challenged.

p.s. – I decided to highjack your blog since I was enjoying our discussion on Keck’s site. I hope you don’t mind.

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atimetorend August 5, 2010 at 10:08 pm

Al Mohler seemed to chide Walker’s statement that there was no rational basis in the case of the proponents of prop 8, but of course does not go on to state what rational basis he finds. Rallying the troops with rhetoric, nothing else.

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Robert August 6, 2010 at 9:37 am

The problem with this is that same-sex marriage offers no rights to same-sex partners that a civil union didn’t already provide.

Eric, according to this site, this isn’t true. Marriage brings federal benefits and protections that civil unions don’t. Also, a marriage in one state is automatically recognized as valid in another. I don’t think that’s the case with civil unions.

p.s. – I decided to highjack your blog since I was enjoying our discussion on Keck’s site. I hope you don’t mind.

Haha! Nope, you’re welcome any time. :) I do think though we owe an apology to Jonathan, however, for we seem to have hijacked his original topic.

atimetorend, I agree. It’s all about whipping up moral outrage, which has been good at getting like-minded politicians elected, but at the cost of losing the respect of many, particularly the younger generation.

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atimetorend August 6, 2010 at 10:31 am

@Eric, (please read this without thinking I am judging you or preaching at you, I don’t mean to): I think for many homosexuals, your point is valid (with exception for Robert’s legal/financial clarification). However for many, something very important and even far more significant is gained by the legalization of same-sex marriage. It is a sign of legitimizing to the world around them who they are and how they choose to live their lives, a very important factor for a group who has many reasons to feel marginalized by society.

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Eric August 6, 2010 at 11:34 am

@Robert – I’m not going to sit here and pretend that marriage and civil unions are completely equal; however, you will notice that isn’t what I said. No rights have been gained by allowing same-sex marriages. The same inequalities between marriage and civil unions will still remain between marriage and same-sex marriage. If we really want equal rights for same-sex couples – and we most definitely should – then prop 8 is the wrong battle to be fighting. True equality can only be accomplished by the repeal of DOMA. If DOMA were to be repealed, marriage and civil unions would offer the exact same rights and responsibilities in California.

@atimetorend – I understand that the homosexual community feels marginalized, and for good reason. I think society as a whole, and especially the church, needs to be more accepting of all people, regardless of sexual orientation. That being said, I think there are better ways to accomplish this then by extending the practice of marriage. If anything, this whole war on prop 8 has just created more tension.

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atimetorend August 6, 2010 at 12:20 pm

Eric, regarding civil unions, dropping the legal/financial privileges granted through marriage to heterosexual married couples would I think have the effect you note. But maybe that is a can of worms that could never be politically opened? And even practically speaking, with so many laws based on marriage, repealing them might be a insurmountable undertaking? If so, then extending marriage might be the right thing to do, even if it is not the optimal solution?

I am out of my league when you start talking about the relationship with the repeal of DOMA, so I realize that might negate what I am saying anyway. But I think we are likely philosophically on the same page.

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Eric August 6, 2010 at 12:56 pm

DOMA prevents the federal government from recognizing any same-sex marriage. Repealing DOMA is the only way to establish equality for same-sex couples in California.

If DOMA were repealed, then civil unions would offer complete equality to same-sex couples. Under California law, “domestic partners shall have the same rights, protections, and benefits” as married spouses. (Family Code § 297.5.)

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atimetorend August 6, 2010 at 1:17 pm

Thanks for the info Eric. OK, so even if DOMA were repealed and same-sex civil unions had the same legal protections as heterosexual marriages, wouldn’t same-sex civil-unioned people still feel marginalized because they couldn’t be “married”?

Could the solution be for the government to treat all legal couplings as civil unions and let churches decide on their definitions of marriage? Or is it all academic at that point?

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Eric August 6, 2010 at 1:42 pm

Could the solution be for the government to treat all legal couplings as civil unions and let churches decide on their definitions of marriage?

This is exactly what I think should be done. From my perspective, marriage is a religious ceremony and never should have been intertwined with government in the first place. All state recognized relationships should be civil unions.

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