It’s hard to remember a less legal-sounding and more partisan-political-sounding judicial ruling since Roe v. Wade. The judgment rendered by federal judge Vaughn Walker on Proposition 8 yesterday is a pure mish-mash of buzzphrases. It’s bad law, and I can’t believe it won’t be overturned on appeal.
Here is some language from the ruling, excerpted by Allah yesterday evening:
Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.
This is political blather. “Singling out gay men and lesbians for denial of a marriage license?” Restricting the definition of marriage to a man and a woman “discriminates” against everything else in the material universe. It means minor children can’t get married in any way recognized by the state, because they’re not “men” and “women.” A man can’t marry his horse. A woman can’t marry her car. No one can marry the Sierra mountain range, a case of Budweiser, or his multi-season DVD collection of Burn Notice. A dog doesn’t get to decide to marry a cookware set – not even a top-of-the-line cookware set from Nordstrom’s.
Or, to be precise, you can declare yourself married to whatever you want, but the state isn’t bound to recognize it as “marriage.”
Defining marriage at all, for the purposes of law, is inherently a limiting act. Everything except the authorized parties to a state-recognized marriage is “discriminated against” when marriage is defined. It’s purely political – as opposed to the purported act of insisting on a politically agnostic legal distinction – to list gays and lesbians as the parties “singled out” for injury. Doing that is not a basis for invoking “equal protection,” it’s a basis for invoking a social division that gets people riled up, and diverts their attention from the hash being made of the actual principles at issue in law. It’s political demagoguery.
The primary issue in law is whether the people get to make the social definitions they are expected to live by. “Marriage” is a social definition. It is not and has never been a matter of personal choice – not when you want your marriage recognized by the society around you, and when you want it to have economic, financial, and legal meaning.
The effect of the Walker ruling is to say the following:
A. The people are not an authorized agent for defining marriage. That’s the effect of the “due process” argument: that the people, acting through the ballot initiative, don’t have the authority to make this decision for the purposes of law.
B. Definitions of marriage that don’t accommodate excluded permutations are inherently “discriminatory,” in the bad way that is constantly being triangulated in partisan politics. It’s not clear if the state can define legal marriage at all – states prohibit polygamy, for example, and marriage to minors under certain ages, and the intermarriage of close family members; and states require guardians to approve the marriages of the incompetent and marriageable minors. States don’t recognize marriage between a human and a pig, a parakeet, or a pizza. Or between a pig and a pig, or a pig and a parakeet. How much of this constitutes “singling groups out” for discrimination under the marriage laws?
In the end, the big question is: What does this ruling mean? Can the state define marriage? Or is it simply bound to recognize whatever someone calls a marriage? Not recognizing a “marriage,” for the public’s purposes, is inherently discriminatory every time it happens.
I have a feeling the Supreme Court is going to come through on this one for us. From a legal standpoint, Walker’s decision is idiotic.
Cross-posted at Hot Air.