Judge Walker’s Prop 8 ruling: Evidence shows that a gender restriction on marriage is “nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life”
This is the first (of six) of Walker’s dismissals of Prop 8 supporters’ claims. The first claim was that “tradition” is enough to maintain marriage as between a man and woman. Walker states that previous court rulings indicate that an “ancient lineage of a classification” does not make a classification timelessly rational. “The state must have an interest apart from the fact of the tradition itself”; the tradition of opposite-gender marriage is rooted in a history of mandated gender roles, which are no longer legal.
#2: Same-sex marriage does not weaken the institution of marriage; no ‘lead time’ is lawfully necessary in this case to implement social change. Here Walker points to racial integration of schools in which courts recognized that schools needed time to adjust, and the courts gave them such time, but this did not speak to the lawfulness of racial integration itself. California has already performed same-sex marriages, so the state does not require any “lead time.”
#3: Same-sex parenting and opposite-sex parenting are proven to be of equal quality AND Prop 8 does not make it more likely that children would be raised by biological parents. Here Walker states, somewhat humorously, that Prop 8 isn’t even about children, it’s about marriage. In other words, Walker is carefully untying what he finds to be irrational and rhetorical knots, e.g., that marriage should be between a man and a woman because only a man and a woman can produce offspring (irrational, because the state has never required that married couples make babies). He states that if Prop 8 were really about “California’s interest in mandating sexual activity to occur within marriage, and parenting to occur within marriage” (as many Prop 8 supporters claim), the proposition does not help this one iota because it requires some sexual activity and parenting to occur outside of marriage. Walker is speaking to the fact that California allows same-sex parenting and adoption and certainly same-sex intimacy (the whole country does after Lawrence v Texas), thus he is only acknowledging those families that are already lawfully existent in California. Because we’re talking about rights that come with marriage, Prop 8 destabilizes these California families.
#4: Whether or not same-sex marriage would affect the first amendment rights of those against same-sex marriage, Prop 8 is not rationally related to this interest.
#5: Private moral and religious views seem to provide the only reason to call same-sex and opposite-sex marriage by different names, which cannot be the basis of law. Parallel institutions (marriage and domestic partnerships) have provided an undue burden on the state.
#6: “Catch-all” rationalizations against same-sex marriage are born from either a dislike of same-sex couples, or a belief that same-sex coupledoms are “lesser than” opposite-sex ones. Again, private moral views cannot form the basis of legislation. Moreover, this “lesser than” sensibility is harmful to gays and lesbians.
In sum, this ruling does seem to rest upon specifics in California, such as lawful same-sex parenting, adoption and nondiscrimination laws on the basis of sexual orientation. Walker points to reasons for federal allowance of same-sex marriage by foregrounding history, sociology and psychology on the matter, but his interpretations–and even, unfortunately, statements of fact–are less likely to hold in the US Supreme Court. Walker offers good reasons for the Supreme Court to dismiss Prop 8, though, not because of “discrimination against gays” (which would require a concrete definition of the nature of sexual orientation), but because of “sex discrimination.” This logic harks back to era of the ERA, and it will be interesting to see what appeals courts make of it.