image Following up my earlier post on this as I have some additional thoughts.  There are a number of frustrating things outside of Judge Vaughn Walker’s arrogance in ruling against California’s Proposition 8 which amended the California State Constitution to state in Article I, Section 7.5  that only marriage between a man and a woman is valid in California.  For starters is his attempt at deconstructing marriage, unfortunately for supporters of this ruling it is doubtful the U.S. Supreme Court will take this approach.

Let me remind you that the California Supreme Court ruled Proposition 8 constitutional even though it voided an earlier ruling they made.  They obviously have no problems with gay marriage, but they stilled ruled the way they did.  Then also frustrating is how in his ruling he relied upon faulty science, even a supporter of the ruling agrees, “ In dismissing that difference, Walker was at his weakest, relying on 1960s mumbo-jumbo rather than actual scientific research.”

The Heritage Foundation also pointed out problems with his decision and his usage of “the facts” as well:

Here are just some of the “facts” Judge Walker found:

  • Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.
  • The campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.
  • The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian.
  • The genetic relationship between a parent and a child is not related to a child’s adjustment outcomes.
  • Children do not need to be raised by a male parent and a female parent to be well-adjusted.

How did Judge Walker arrive at these “facts”? By agreeing with everything the same-sex marriage proponents’ “experts” said while ruling that the traditional marriage witness was “unreliable” and “provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate.” In so doing, Walker not only ignored the views of millions of Californians, but by basing his decision on the 14th Amendment, he also ignored the factual determinations of every single popular vote that has been held on the issue in the past two decades. According to Judge Walker’s reasoning every single one of these Americans is a bigot whose opinion on marriage has no place under Judge Walker’s Constitution.

Then we have the charge of bias which the media largely ignored, but The Heritage Foundation demonstrated has been pretty well documented:

From the beginning, it was clear that Judge Walker was more interested in making a political statement than upholding the rule of law. That is why after Judge Walker ruled that the trial could be broadcast live, the Supreme Court took the remarkable step of overturning his decision, writing in January: “Not only did [Judge Walker’s court] ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue.”

Then we have the failure of the State to defend its own Constitution, Governor Arnold Schwarzenegger and Attorney General Jerry Brown refused to defend it, leaving it up to the people once again.  Where have I seen that before?  Hmmm……

I am heartened to see that at least one backer of same-sex marriage understands that pursuing change through the courts is the wrong approach and will likely backfire.

Lest anyone should misunderstand, let me note that I personally support marriage rights for gay couples.  I think court decisions are a very bad way to achieve that goal, for the reasons discussed above as well as because court decisions tend to lengthen political conflicts rather than resolve them.  It is worth remembering that in 1973 there was a clear trend among the states in favor of abortion rights.  The main accomplishment of Roe may have been to make abortion formally legal, but the decades-long firestorm of controversy has made actual exercise of those rights difficult in many areas of the country.  Using the courts is a way to an emotionally satisfying quick “win” on issues where the legal elite runs ahead of broader social attitudes, but that emotional rush often leads to a big crash in the longer term.  Temporary success can lead to long-term failure that is even more firmly entrenched than it was before.

I also don’t think that every desirable social policy enjoys the status of constitutional right.

I’ll end this post with a slight digression, I wonder if President Obama will make a statement on this?  He’s in a delicate position as many who turned out in droves to vote for Proposition 8, also voted for him, and African-Americans are the only group where he still enjoys high favorability ratings.  Hmmm…

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