In the wake of Judge Vaughn Walker’s decision last month in Perry v. Schwarzenegger striking down the California constitutional amendment defining marriage as the union of a man and a woman, legal scholars and analysts continue to weigh in on the ruling.
The decision has now been stayed by a panel of the Ninth U.S. Circuit Court of Appeals. A briefing schedule has been set up, and the appeal, including arguments over issues of legal standing for Prop 8’s proponents, is scheduled for hearing this December. Meanwhile, authorities on various sides of the policy debate over same-sex marriage continue to find fault with Walker’s reasoning or result.
Charles Krauthammer, syndicated columnist, wrote in The Philadelphia Inquirer:
As for Proposition 8, is it so hard to see why people might believe that a single judge overturning the will of seven million voters is an affront to democracy? And that seeing merit in retaining the structure of the most ancient and fundamental of all social institutions is something other than hatred of gays—particularly since the opposite-gender requirement has characterized virtually every society in all the millennia until just a few years ago?
Dennis Byrne, columnist, wrote in the Chicago Daily Observer:
Walker’s 126-page decision is a thorough elucidation of the testimony of expert witnesses opposing Proposition 8. Liberal commentators have hailed the decision because its “evidence” supposedly destroys all the “myths” raised by opponents of gay marriage, as if it were the last word. I don’t think so. Walker’s opinion also reads as if he had already decided. But more important, the decision is fundamentally based on the expert testimony of one side. In this, he wades into a contentious legal area: Who is an expert witness? Who is a purveyor of “junk science?” Deciding this is hard enough when trying to qualify experts in the “hard sciences,” such as medicine and engineering. But it is enormously more difficult when trying to qualify social and behavioral science experts. Social science is indeed a “soft science,” despite the protestations of its practitioners.
Robert K. Vischer, professor of law at the University of St. Thomas, wrote in Commonweal:
When a judge takes a hotly contested definition of marriage and labels it a “finding of fact,” we have not discovered an ingenious end-run around the turmoil of our culture wars. We have simply witnessed another volley in those wars. Tempting as it may be, the rule of facts cannot escape the moral controversy enveloping the marriage debate. Pretending otherwise serves neither the long-range interests of same-sex marriage advocates nor the vitality of our political community.
Ed Whelan, President of the Ethics and Public Policy Center, wrote at National Review Online’s Bench Memos:
Walker’s refusal to stay his judgment pending appeal [is] the latest step in his gamesmanship to try to deprive Prop 8 proponents of their appeal rights and to avoid effective appellate review of his shenanigans. Walker’s course of conduct would be sufficient cause for national scandal in any case. That it comes in a case that aims to radically remake the central social institution of American society makes it utterly intolerable. I can’t imagine that any federal district judge has ever committed more egregious and momentous acts of malfeasance in a case.
Wilson Huhn, professor of constitutional law at the University of Akron School of Law, wrote:
There is another sense in which the opponents of same-sex marriage may stand a chance in proving that the law may make a difference. They also contend that a mother is a role model for her daughters and a father is a role model for his sons. A mother shows her daughters how a woman should act, while a father shows his sons how to be a man. This may be true. In my opinion it is not only possible but probable that gender roles are taught, and taught most effectively, in the home. Accordingly, if the government seeks to maintain and reinforce men and women in strict gender roles it makes sense that families should be encouraged to reflect this pattern—through legal compulsion if necessary.
This type of legal gender-assignment may comport with fundamental religious doctrine, particularly within religions that encourage women not to work outside the home and that permit only men to serve as priests. But our society has now rejected any role for the law to play in determining how “manly” or how “womanly” individuals choose to be. Under the Constitution a man can be a “mother” and a woman can be a “father” if they choose. Judge Walker’s decision goes far beyond gay rights. It concerns the right of every single person in society to accept or reject traditional gender roles.
Hadley Arkes, Ney Professor of Jurisprudence at Amherst College, writes at The Catholic Thing:
Archeologists of the law may one day come upon these words: “Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law.” Now imagine recasting the sentence in this way: “Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to beget children.”
The first line was written by federal Judge Vaughn Walker in San Francisco as he struck down the constitutional amendment passed by the voters of California, a move to restore the traditional understanding of marriage as a legal relation of a man and a woman. Judge Walker’s argument made sense only if the notion of begetting was conspicuously removed from the very meaning and purpose of marriage. Surely, marriage is not necessary for love: There is genuine love between grandparents and grandchildren, brothers and sisters, and in the nature of things they cannot be lesser loves because they are not attended by penetration and expressed in marriage.
Marriage is not necessary for love, but the law of marriage finds its deep justification as a framework for the begetting and nurturing of children.
Ken Blackwell and Ken Klukowski, senior fellow and special counsel, respectively, at the Family Research Council, wrote:
[Judge Walker’s] mistake ultimately comes from a false choice he sets up as the legal issue. He writes, “The question presented here is whether plaintiffs seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right.”
That’s not the issue. The issue is whether a person has the right to redefine marriage. The district court tried to deal with that issue by declaring its own definition of marriage: “Marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household.”
One of the problems with that definition is the word “two.” Why only two? Dozens of countries across the world practice polygamy, where a man can have more than one wife. Islam, for example, permits a man to have four wives, and that’s the law in Muslim nations. Why does the court insist on two?
William A. Jacobson, Associate Clinical Professor of Law, Cornell Law School, wrote:
This unquestionably was the correct decision as to a stay. Contrary to the glib arguments that there is no likelihood of success on appeal, the District Court Order is the outlier; that doesn’t mean that the 9th Circuit will overturn it on the merits, but clearly there is a reasonable likelihood of the result being overturned. The argument that there was no harm was weak, because the 9th Circuit certainly saw what happened in the state court process, where the California Supreme Court, though upholding Prop. 8, had to grapple with what to do with same sex couples who had married in the interim. The 9th Circuit didn’t need that headache, and neither did society. Given the expedited schedule, the relatively short delay in such marriages resulting from a stay was not enough to overcome the legal chaos similar to what happened in the state courts.