Strike Down of Prop 8 Poses Many Problems

As D.J McGuire has pointed out in a recent post,a decision striking down Proposition 8 has been rendered by a federal judge in California.

It is hard to decide where to begin in even describing the problems with this most recent ruling. However, the precedent breaking aspects of this case are perhaps the most appalling.

The Walker decision has, for the first time in American history, established that marriage is a fundamental right rather than an institution. According to Walker’s logic, a homosexual couple cannot be denied access to the institution of marriage because they have a “right” to participate. This logic is clearly flawed, because now, by government fiat, all institutions will be subject to this principle. For instance, theoretically the federal government could tell the Catholic church that the equal protection clause applies to married men who wish to join the ranks of the Catholic priests, despite the fact that the Catholic church restricts that office to celibate members.  Although this example may seem far fetched, what Judge Walker has done here has opened a door that could lead to much more government control over religious institutions, which would be a violation of the first amendment.

The editors of the National Review penned an article highlighting Judge Walker’s weak legal reasoning. One such troubling error was Walker’s opinion that,“Proposition 8 places the force of law behind stigmas against gays and lesbians.” This opinion shared by Judge Walker is quite troubling because it is not his job to expound on the reasoning behind a law’s passage, rather his job is to judge the content of the law itself. His focus on a loose concept that the citizens of California had some sort of bias against homosexuals, demonstrates that his legal reasoning has much to do with his opinion and little to do with the law.

Another aspect that should alarm all limited government conservatives and libertarians is the fact that a federal judge used his position to arbitrarily change the definition of an institution that the United States government had no part in creating. Columnist Kathryn Jean Lopez quoted from the ruling with a note in National Review which quoted Judge Walker’s legal opinion as stating that, “Gender no longer forms an essential part of marriage.” Since when did a federal judge have the power to make such a declaration? Does the Constitution give Judge Walker the authority to make this legal declaration? If we are honest with ourselves, we would say no.  Another interesting aspect of that quote is that Judge Walker concludes that gender “no longer” forms an essential part of marriage. This insinuates that it once did. When did it change? Who changed it? The Government.

The fact that the government is claiming authority over an institution as foundational to public life as marriage, should trouble all those who claim the mantle of conservatism. Unfortunately, many of us would rather avoid this issue in the name of “tolerance.” In the interest of tolerance and unity the conservative movement has allowed the government to make a major power grab.

There are even some who have suggested that we go along with this madness so that perhaps, just perhaps, the homosexual community will join with the Republicans. This is a short sighted strategy, however, because there is a likelihood that a solid voting block of evangelical Christians and Catholic voters will leave the GOP if such a thing happens. These religious voters are not cattle that can be herded, and they will not compromise  their religious liberty and autonomy in the name of the GOP getting a few extra votes. The GOP will have a net loss of voters if they embrace the agenda to redefine marriage.

So what is the course of action that we should take?

This case has highlighted the need for two things; legislative protections barring government redefinitions of marriage and judicial reform.

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