Judge Was Right to Overturn Ban on Gay Marriage

Wednesday, August 18, 2010

I assume most people are aware that the California legislature voted several years ago to allow gay marriage.

Two years ago, a coalition led by the Church of Jesus Christ of Latter Day Saints and the Family Research Council placed an initiative (Proposition 8) on California's 2008 ballot. A "yes" vote would repeal gay marriage. The measure won, and gay marriage was again outlawed.

Immediately, Prop 8 was challenged in federal court. An unlikely team, liberal Ted Olsen and conservative David Boies, united to have it overturned. What these two men have in common is the highest respect for our Constitution and its notion of equality for all.

Last week, Judge Vaughn R. Walker struck down Proposition 8 as unconstitutional. The ruling will surely be appealed all the way to the Supreme Court. Nevertheless, the gay/lesbian community, along with those who believe in equal protection under the law, have been celebrating. The religious right, Sarah Palin and the GOP are outraged.

I would suggest that anyone interested in this issue - whether it be gay rights, constitutional law, civil rights or the increasingly politicized Supreme Court - go online and read a nonpartisan review of Judge Walker's opinion. It is the most commonsense, level-headed look at an emotionally charged issue that I have ever come across.

There are no academic elitist arguments. Walker speaks plainly and directly to the merits of the case. It is really quite refreshing. Judge Walker examines the evidence of the proposition supporters and systematically dismantles it with clear, simple logic.

For example, the most common argument against gay marriage is that marriage is meant for procreation. Gays aren't meant to have children, so why should they be entitled to marry? But then, could senior citizens marry?

What if after having children in a previous marriage, a man chose to have a vasectomy? Can't he remarry? Or people who just can't have children, or don't want to? Do we deny them marriage? Walker quoted, of all people, Justice Anthony Kennedy: "It would demean a married couple were it to be said that marriage is simply about the right to have sexual intercourse."

Judge Walker goes on to list some of the repercussions of marital discrimination: immigration issues, citizenship, tax policy, property rights, inheritance, insurance, and survivor and medical benefits. He addresses the religious opposition. Most marriages take place in a church or temple, but the clergyman needs a civil license. State law validates the religious ceremony. Conversely, couples married at the courthouse don't need approval from a church.

The point is, marriage, while recognized by a religion, is a civil recognition of a relationship granting two people certain privileges. When civil authorities decide to recognize one group and award them benefits but refuse to allow another group access to those same benefits, that's discriminatory. That is what the Constitution protects against: This group can do this and have that, but that group can't.

This point was actually made more than 40 years ago in Loving vs. North Carolina. State law forbade interracial marriage. Why? Because some people found the idea of mixed marriages disgusting. So it raised the question: Should society discriminate against some groups because it makes another group uncomfortable?

Again, Walker quotes Kennedy: "Moral disapproval, without any asserted state interest, has never been a rational basis for legislation." So regardless of what your church or family might think, how is society harmed if a black man and a white woman got married? And by extension, if two men, or two women, got married?

Prop 8 supporters tried to push the "state interest" angle. They claimed 23 harmful consequences of gay marriage. But the "expert" witnesses were nothing of the sort. Seeing their first witnesses' assertions shredded, the defense decided against calling the final 15.

The least persuasive - and most uniformed - argument is that "an activist judge" has overturned the will of the majority. You'll hear this point made by Palin/ Fox ad nauseam. (Walker is a libertarian first nominated by Reagan and rejected by Democrats as "too conservative," but later appointed by Bush 41.)

Many aspects of this country are grounded in the concept of majority rule. However, our rights aren't. Civil liberties are not subject to a vote. Were that the case, we'd still most certainly have segregated schools and public facilities.

While access to a lawyer and a speedy trial are still a right, there is always a Bush or Cheney - elected by majorities - lurking to rescind them. That's why we'll never put rights to a vote. (Tea partiers: You claim to revere the Constitution. Where do you stand on Prop 8?)

The appeal before the Supreme Court will be fascinating, if for no other reason than watching Justice Kennedy. Walker quotes him so often that to overturn him, Kennedy would be contradicting his own previous decisions. Stay tuned.

Rick Gagliardo is a retired high school teacher living in Pinehurst.

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teufelhunden 1 year, 9 months ago

Prometheus - "Isn't it time for those on the political left to "Move On?"

Priceless!!!

OldSpook 1 year, 9 months ago

Prometheus,

Once again, you're using logic and common sense to refute a left wing construction. I admire your patience.

And I believe the three judge panel of the Ninth Circuit Court of Appeals has placed a hold on application of Judge Walker's ruling. This is the third time Walker has been rebuked by appellate courts since he was appointed by President Regan. Although all three seem to have been this year.

RmeMP 1 year, 9 months ago

so who exactly thinks that one judge should be able to overturn what the voters think? this issue was put on the ballot for the voters to decide - and they did; only to have a liberal judge say "too bad". whatever your personal views on this matter are, thats fine - but the voters have spoken, and their words should mean something. IMHO :/

johnw 1 year, 9 months ago

Overturning 52.3% of voters. Leaving 47.7% quite happy. A narrow majority doesnt equate to constitutional justice though.

eflat7 1 year, 9 months ago

@RmeMP Exactly! But that's not good enough. I'm sick of hearing about it. When the bluest, most liberal state in this great country, says they don't support it, it should go without saying that the rest of the country probably doesn't support it either. It should be dropped. But it won't be. They'll continue to shove it down out throats by desensitizing our youth via TV and music until it seems as if we are just "ol skool" thinkers.

Don't let it happen. Keep up the good fight. It's not ok no matter how you pretty of a package you wrap it in.

Satch2929 1 year, 9 months ago

There's an agenda here! To "mainstream" and normalize gay and lesbian relationships. Everything else is just an aside. What's next? NAMBLA?

Sally244 1 year, 9 months ago

Thank you Rick for this article. The constitution is there to protect everyone regardless of their life choices, and every law abiding citizen deserves to be treated equally.

tarheelz 1 year, 9 months ago

Thanks, Mr. Gagliardo, for an intelligent and spot-on article concerning gay marriage. I am glad to know there are folks in Moore County with the ability to grasp the real issue at hand- equality for all. It really is that simple- leaves religion, politics and personal prejudices out of it. I, for one, will be watching the appeal proceedings very closely.

ThomasAlex 1 year, 9 months ago

@eflat7

Voters banned Interracial marriage and abortion, why allow the courts to overturn voters rights?

ThomasAlex 1 year, 9 months ago

@RmeMP

I think your confused, voters can't vote away Rights guaranteed by the US Constitution.

ThomasAlex 1 year, 9 months ago

@Prometheus

Gay Rights refer to Rights currently being denied to Gay people, but afforded to Straight people. So yes it is Equal Rights to Gay people.

Sally244 1 year, 9 months ago

Prometheus, just why is marriage the wrong answer. Every law abiding citizen should be treated equally. We all have the right to marry or not marry, just why don't gay people have that right? Is it because the majority doesn't like it? This is a constitutional issue not a bigoted issue.

irkim13 1 year, 9 months ago

Homosexual people have the exact same right to marry as straight people. They can marry a member of the opposite sex just like heterosexual's can and can not marry a member of the same sex just like heterosexuals.
Of course there are other limitations to marriage like age of consent, marrying animals and multiple partners but why should people who want to marry multiple people or those who want to marry a pet or a child be discriminated against afterall I bet they were born with their particular desires as well.

Sally244 1 year, 9 months ago

irkim, I believe we were talking about human equality. If churches don't want to perform a marriage ceremony, they don't have to but that doesn't mean people can't be legally married.

irkim13 1 year, 9 months ago

Sally244 of course they will if homosexual marriage is legalized or else they will be guilty of a hate crime and considered bigoted and hate mongers.

blake 1 year, 9 months ago

Mr Gagliardo, I caution you not to be so polarizing in your opinions. This is a broad issue that does not fall to party lines. Just as a liberal state like California can pass Prop 8, you might be surprised a lot of conservatives stand against it. I find it interesting you take a shot at Cheney who supports states' rights to gay marriage.
I consider myself a Tea Party supporter and stand against Prop 8. However, I pray the tea party movement does not take a stand on this issue. It is a movement toward limited government and fiscal responsibility and I loathe that it might take sides on social issues (like gay rights and abortion).

commonsense77 1 year, 9 months ago

Prometheus- "There is no "right to marry" that these folks are being denied - they are being denied equal application of the law in that the state refuses to give its permission for same sex couples to marry. The distinction is important to finally settling the issue."

Actually the 14th Amendment, Section 1 states

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The Constitution clearly defines equal protection of the laws.

ThomasAlex 1 year, 9 months ago

"Homosexual people have the exact same right to marry as straight people. They can marry a member of the opposite sex just like heterosexual's can and can not marry a member of the same sex just like heterosexuals. "

And how would that work since Homosexuals are not attracted to the opposite sex? Your using the same arguments they used in Loving vs. Virginia. "Blacks have the same rights; any Black person can marry another black person."

ThomasAlex 1 year, 9 months ago

@Prometheus

"What rights are being denied gay people that straight people have?"

How is Marriage the wrong answer? When the Courts have consistently ruled that "marriage was a basic human right."

ThomasAlex 1 year, 9 months ago

@Prometheus

"NOT an equal right to marry - such a right does not exist based upon the fact that a license is required to enter into a legally recognized marriage. "

Loving v Virginia, 388 US 1, 12 (1967) (The “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”)"

"Turner v Safely, 482 US 78, 95 (1987) (“[T]he decision to marry is a fundamental right” and marriage is an “expression[ ] of emotional support and public commitment.”)

"Zablocki, 434 US at 384 (1978) (“The right to marry is of fundamental importance for all individuals.”);"

"FF 34-35, 37. The state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace.

"FF 35-37. The state respects an individual’s choice to build a family with another and protects the relationship because it is so central a part of an individual’s life."

ThomasAlex 1 year, 9 months ago

@irkim13

And any Black man could have married a Black woman, why on Earth did they demand Equal Rights? Homosexuals deserve the same Right to marry as Heterosexuals; which they don't currently have. Your interpretation of the Constitution is flawed.

irkim13 1 year, 9 months ago

ThomasAlex Small difference, a black person never has a choice to become black or white.
If the Constitution gives the "right" to marry as a person so desires then people who are attracted to animals and children or desire multiple husbands or wives are also being denied the "right" to marry as they desire. Is that fair? The qoutes listed above regarding prior court rulings were based upon heterosexual marriage I believe and rightly so.

OldSpook 1 year, 9 months ago

Actually, it looks more like a temper tantrum by a special interest group more than an equal rights issue. All I seem to be hearing is "Waaa you’re not supporting my choices and what I want to do! You’re an evil racist/bigot/xxxphobe! I hired a lawyer to find a way whereby I can say you’re denying me my rights! Waaa waaa waaa” Get a clue. This is just another example of the vocal minority with their in your face, high profiling, political correctness that is morally bankrupting this country. And yes, I decide what I will support and what I will not. The voters have spoken and they are against homosexual marriage, I’m good.

irkim13 1 year, 9 months ago

From what I have heard from various news sources this judge had much to gain personally from his own ruling and if that is the case should he not have recused himself?

ohreally 1 year, 9 months ago

@ChuckTaylor, your post is very thought provoking and inspirational. And you sir are correct. I for one could care less what other people do in their little bubble of a life. As a parent I feel the responsibility to raise my children and teach them what I believe is right and wrong regardless of what others in society see as right and wrong. I am personally against homosexuality, I think it is unnatural and furthermore disgusting. At the same time, if that is your choice and you want to live your life that way, who am I to say you can't? If you want to get married and make it public or official, knock yourself out! Once they pass this, Bubba will expect the rights to marry his sister.....

xemrac 1 year, 9 months ago

I don't have a problem with 'gay' marriage so far as it does not infringe on my personal religious freedom. By that I mean, don't marry in a church of Christ before members of my congregation and by an ordained minister. If you choose to "marry" one another legally before a justice of the peace or whatever...then fine. That's your life and your choice. I do get a little bent out of shape when Christian churches begin to allow this in a house of God.

It is MY right to raise MY family in line with MY religious beliefs...just don't go there and we will be fine.

buddysmith 1 year, 9 months ago

if two gay people are married, do they get to file a joint tax return? if yes I dont support it, if no, I do!!!!!!!!!!!!!!!!!!!!!!!!!!!!

eflat7 1 year, 9 months ago

@xemrac I agree. But that's not good enough. They want full, unconditional recognition by people who do not agree with it. It can't be just agree to disagree.

@ThomasAlex Why do you keep bringing up black people? Racism and Homosexuality are two different issues.

None 1 year, 9 months ago

@buddysmith => I don't have a horse in this race. But you bring up a good point eventhough it's tongue and cheek. I wonder how much it will cost taxpayers to print new governmental forms as well as forms indicating a heterosexual marriage? Will forms denoting both genders have double entries for male - male ~ female - female? As opposed to man and wife? Just wondering....

BigE 1 year, 9 months ago

I have never understood the resistance to gay marriage. Two adult humans love each other, want to make a life and family together, and want to enjoy the benefits of marriage. What's the point of getting in their way? We should be promoting and encouraging love. Heck, it is not as though heterosexuals have proven that they are any good at marriage.

OldSpook 1 year, 9 months ago

Well BigE, I guess it's because some of us just don't much care for a special interest group yelling in our faces that we are not giving them what they want. Or it could be that some of us find marriage sacred and should be between one man and one woman and we don't mind keeping it that way. Maybe we just disagree with their lifestyle and don't mind voicing our opinions just as much as they voice theirs. Could even be that some of us just don't like the homosexual community telling us what we will find acceptable. And you are correct; some heterosexuals have proven ill equipped for a successful marriage. What’s your point?

Bflat 1 year, 9 months ago

Folks like that were not designed....um, "created" to be married. Just saying....

foregolf 1 year, 9 months ago

I know a homosexual couple that has been together for 21 years. I also have a neighbor who has been legally and religiously married 3 times, a cousin who is on marriage #4, and myself, who is has gone walked down the aisle twice.

Why does ANYONE care who anyone else chooses to marry. Marriage is a legal partnership. It is alway legal. Involving religion is a personal choice and if a church chooses not to recognize a same sex marriage, so be it. This is not about religion. And, are you kidding me, worrying about how much money it will take to revise legal paperwork to include same sex marriage. Did anyone else get at least TWO notifications concerning the census?

Those of you who do not like homosexuality, that is your choice. But I feel more that you do not understand it. It is not all sexual. It is also not a "choice". You can think what you want but if you were to educate yourself, preferably by speaking with someone who happens to be gay, you will find that this was not a choice, but rather just who they are. Just like you do not choose your gender, the color of your hair, or anything else that is determined by your DNA. I am not going to quote articles supporting my opinion because I have read just as many that dispute it.

Any union between two consenting adults should legally be recognized. Why should anyone have an opinion other that this. Why do you all who are against this, care so much? And don't quote the Bible to me, this is NOT, and I cannot say this enough, NOT about religion. Give me a legal reason.

ohreally 1 year, 9 months ago

The financial impact is far greater than printing new paperwork up. Consider the new tax breaks for these "married" couples. Consider the impact on health insurance plans, medical, dental, etc. The entire industry will be impacted, which only means one thing, higher rates....

foregolf 1 year, 9 months ago

I also would like to consider the impact on giving these human beings the opportunity to make a legal commitment to someone they love and enjoy the benefits of having a recognized union. I feel that not all decisions should be made by putting financial consequences first. I think that equal human rights outweighs all other factors.

irkim13 1 year, 9 months ago

We all have varying desires (some we are born with some developed with traumatic events) the question is whether we act on those desires or attractions. I may desire to have more than one wife (or cheat on my wife) or someone may be attracted to animals, children or have the desire to murder or abuse people or steal, etc the question is whether it is right or wrong to act on those desires. Just because we have desires (that we may have been born with) it does not mean it is OK to act on all of them.

blake 1 year, 9 months ago

irkim, when an act infringes on another or hurts the innocent, by all means call it wrong. You are on a very slippery slope there and I think you fell off the edge with that one.

irkim13 1 year, 9 months ago

Not sure how I "fell off the edge". I was simply trying to say that just because one has desires or attractions (they may have been born with) it is not necessarily OK to act on those desires or attractions, nothing more, nothing less.

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Judge Was Right to Overturn Ban on Gay Marriage

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