Fairness in Marriage

Posted Aug. 10, 2010, at 8:15 p.m.

U.S. District Judge Vaughn Walker’s 138-page decision upholding same-sex marriage in California contains words of wisdom that should persuade all Americans and the Supreme Court that marriage is a basic constitutional right that applies to everyone throughout the country.

In last week’s ruling, he struck down as unconstitutional California’s Proposition 8, approved in 2008 by 52 percent of those who voted. It amended the state constitution to state, “Only marriage between a man and a woman is valid or recognized in California.”

The case had been brought by two gay couples. Two prominent lawyers represented them. They were George W. Bush’s solicitor general, Ted Olson, and David Boies, who led opposite sides in the Supreme Court battle over the 2000 presidential election.

In the 16-day trial in January, Judge Walker conducted a full airing of arguments pro and con that were put forward in the long dispute over same-sex marriage in California and other states including Maine. His decision rejected the various contentions that same-sex relationships are inferior to het-erosexual relationships and that permitting homosexual marriage would harm the institution of marriage, lead children to condone immoral behavior, and burden heterosexuals with a new definition of marriage. He said that civil unions are not a sufficient alternative to gay marriage to satisfy the Con-stitution’s requirements of due process and equal protection.

He concluded: “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.”

Much has been made of the fact that 7 million Californians voted for the amendment and that Maine voters last November rejected by 53 to 47 percent a legislative bill allowing gay marriage. The tide of public opinion seems to be turning. Polls show that most Californians now accept same-sex marriage. In Maine, opinion remains sharply divided.

Judge Walker found public opinion and public votes on the gay-marriage issue irrelevant. He brushed aside the California vote and any other popular vote, quoting a 1943 Supreme Court decision that said that “fundamental rights may not be submitted to a vote. They depend on the outcome of no elections.”

Some critics have objected that Judge Walker is himself openly gay. Odd that they assume a gay judge would be more biased on this matter than a straight judge.

As the California dispute heads toward the Supreme Court, we can only hope that the high court follows Judge Walker’s lead in basing a decision on what the Constitution requires, not current public opinion.

http://bangordailynews.com/2010/08/10/opinion/fairness-in-marriage/ printed on November 29, 2014