Sexuality and Gender

Federal Judge Strikes Down Prop 8

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Author Amy K. Hall Published on 08/04/2010

Federal Judge Vaughn R. Walker wrote in his decision on the California proposition defining marriage as one man and one woman:

“Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment,” the judge wrote. “Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.”

Regarding the second challenge, it’s important to note that Prop 8 makes no classification on the basis of sexual orientation. The definition is one man and one woman. No homosexual person is banned from marrying within this definition of marriage shared by everybody, and there is no test for sexual orientation.

Instead, Prop 8 makes a very rational classification on the basis of a relevant characteristic—that is, the gender of the participants. Men and women are different, and there’s no getting around this. This fact has biological, emotional, psychological, and more ramifications when it comes to families and the creation and rearing of children. The fact is that both male and female are essential to marriage.

Second, I find the first challenge to be disingenuous. Defining marriage as one man and one woman does not “unconstitutionally burden the fundamental right to marry” any more than defining it as only two people “burdens” it, or defining out close relations burdens it, or an age requirement burdens it, or any of our other laws limiting who can marry whom burden it.

In other words, even after the judge’s decision, we still have a limiting definition of marriage. Therefore, it’s disingenuous to strike Prop 8 down based on the idea that it’s burdening the right to marry if the judge is going to retain the other limitations.

The only consistent options for the judge would be to either strike down all of the qualifications for marriage or let the people debate the issue and establish the definition, as they did with Prop 8, and apply the definition equally to everyone. The question is not one of equal rights (since the judge did not rule every definition unconstitutional), but of whether or not the particular defining characteristic we’re talking about is relevant to the institution of marriage (race is not relevant to marriage since skin color has nothing to do with any aspect of what marriage entails, but gender is relevant). Because defining marriage is not an issue of equal rights, it’s not the place of the judge to decide by fiat, but for the people to debate.

Instead, the judge merely arbitrarily drew the lines of definition for the people without offering any justification for why he drew the lines there and not somewhere else. The reason he offered (that it’s unconstitutional to limit marriage) is simply false. And he must know this, or he would have struck down every part of our current, limiting definition.

(See Greg’s “Same-Sex Marriage Challenges and Responses” for more on this subject.)