The Corner

Marriage, Judge Walker, and Religious Liberty

From a Catholic pastor writing in Massachusetts

When he got to the “findings of fact,” he routinely stipulated and interpreted things in the most favorable light for those advancing same-sex marriage and called them “facts.” Here are examples of many of his facts and findings, which you are urged to read slowly and consider individually: “homosexual conduct and attraction are constitutionally protected”; “no meaningful differences exist between same-sex couples and opposite-sex couples”; “gender no longer forms an essential part of marriage”; the exclusion of same-sex couples from marriage is an “artifact of a time” that “has passed”; same-sex unions “encompass the historical purpose and form of marriage”; marriage has nothing essentially to do with opposite sex relationships or the procreation or education of children from that union, but is only “the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents”; “allowing same-sex couples to marry has at least a neutral, if not a positive, effect on the institution of marriage” and “will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite sex marriages”; “the gender of a child’s parent is not a fact in a child’s adjustment,” “children do not need to be raised by a male parent and a female parent to be well-adjusted,” and “the genetic relationship between a parent and a child is not related to a child’s adjustment outcomes”; “that the majority of California voters supported Proposition 8 is irrelevant”; and “religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.” 

This last “fact” has been viewed by some legal experts as an attempt to establish grounds eventually for declaring that Christian teaching about same-sex activity — and, with it, any opposition to same-sex activity — is in fact maleficent and needs to be constitutionally curbed. When Judge Walker presented “evidence” for this “fact,” he made these critics’ legal interpretations credible. He quoted, presumably as an uncontested example of the harm, the Vatican’s 2003 document, “Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons,” signed by the future Pope Benedict XVI, which reiterates the Church’s teaching that “homosexual acts goes against the natural moral law” and that the homosexual inclination is “objectively disordered.” He also cited “expert” witness Gary Segura, who testified, “Religion is the chief obstacle for gay and lesbian political progress,” a progress that it would be unsurprising to find that Judge Walker and other eisegetical judges may consider inexorable and “constitutionally mandated.” 

The dangers posed by Judge Walker’s decision, therefore, go beyond what constitutes marriage and family and which understanding of marriage and family needs to be promoted and protected for individual flourishing and the common good. They include perils to religious freedom as well as to the fundamental underpinnings of our constitutional republic, when the opinion of one conflicted judge fabricating constitutional violations takes on greater weight than the vote of seven million of his fellow citizens. It cannot be overturned on appeal fast enough.

Earlier in his piece, he highlights some of the work of our Ed Whelan. 

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