Today’s Prop 8 decision is disappointing, if not surprising. Adding to Kathryn’s excellent comment below, a couple of legal observations.
The court’s legal premise is pretty novel. Judge Walker rules that laws reflecting the understanding of marriage as the union of a man and a woman violate the Fourteenth Amendment’s due-process and equal-protection clauses. That is to say, he believes Proposition 8 took away a fundamental right and singled out a protected class for unfair treatment. The bottom-line conclusion in support of both legal theories is that California voters could have had no motive in supporting Proposition 8 other than a desire to signal that people who identify as gay and lesbian are inferior to heterosexuals. This is deeply problematic on at least two levels.
First, none of the testimony in the trial showed (nor could it have shown) the voters’ subjective intent in approving the measure. A corollary point is that the question is entirely irrelevant. If voters pulled the lever for that law because they liked the number 8, or because they have atavistic hatreds, or because they really believe that marriage between husband and wife is a uniquely valuable institution though they have no problem with their gay and lesbian neighbors, it is hard to imagine what those intentions could have to do with whether the law they approve accords with the Constitution. It is worth noting that, since California gives all the benefits of marriage to same-sex couples through another legal status, the idea that most or even many voters were acting out of hatred is pretty unlikely.
The second, more fundamental problem stems from the reality that marriage has always been understood, with very few exceptions, as the union of a man and a woman. This is true across time, across cultures, across religious traditions, etc. Does it really seem likely that this remarkable consensus is nothing but a nasty desire of one group to flaunt its privileged position over a minority? Is it really feasible that the world’s cultures all consulted about how to put down gay people and came up with marriage as the solution? Judge Walker seems to think gender and children have nothing to do with marriage; the facts suggest precisely the opposite. All of this just to say that the idea that marriage is a homophobic conspiracy is a conclusion not anchored in reality.
— William Duncan is director of the Marriage Law Foundation.