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.

  • Chris Frashure

    I was finding it hard to believe that I was so outraged at a post here on BD and baffled by the shear stupidity of its content until I read that the author is a student at Liberty. That pretty much explains it, but I will rebut nonetheless.

    The government isn’t “redefining marriage.” It is, in fact, doing just what the government should do – allow PEOPLE to decide what the definition of marriage is. If two men believe in their right to marry, the government has no right to deny them that.

    Marriage is a legal contract issued by the government, a religious ceremony and institution, or both. A church has the right to not administer marriages, but the government does not.

    “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.”

    With this, you’re either intentionally perpetuating a falsehood, or you’re completely ignorant. The ruling does not dictate what private institutions must do, only what the government cannot do – deny a legal contract between two citizens and the government on the basis of sexual orientation.

    Stop masquerading as a “limited government conservative” and take your religious bigotry elsewhere.

  • Salt Lick

    The government isn’t “redefining marriage.” It is, in fact, doing just what the government should do – allow ******PEOPLE****** to decide what the definition of marriage is.

    Really? Do you even know what a “Proposition” is in California? Other than government officials offering free money to voters?

  • Brian Kirwin

    I guess by “people” he means “a judge”

  • James "turbo" Cohen

    @Chris, if marriage is the definition of a civil union between one man and one woman then gay marriage is a perverted use of the term, no pun intended.
    Saying “gay marriage” is no different than saying “gay civil union between one man and one woman”. So.. If the man and the woman were bisexual they could squeak under the rules? Not in Ca apparently.

    Chris, this is not a religious issue, it is a deliberate disgrace meant to defile the institution of marriage and more specifically, it is deliberate perversion imposed on heterosexual couples by perverted activists. I stand by my words.

  • “The Walker decision has, for the first time in American history, established that marriage is a fundamental right rather than an institution.”

    Did you actually bother to read *any* of the opinion? From p. 112 of the PDF of the opinion:

    The freedom to marry is recognized as a fundamental right protected by the Due Process Clause. See, for example, Turner v Safely, 482 US 78, 95 (1987) (“[T]he decision to marry is a fundamental right” and marriage is an “expression[ ] of emotional support and public commitment.”); Zablocki, 434 US at 384 (1978) (“The right to marry is of fundamental importance for all individuals.”); Cleveland Board of Education v LaFleur, 414 US 632, 639-40 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”); Loving v Virginia, 388 US 1, 12 (1967)

  • Wow…this post is so far off base. Comparing marriage to the ordination practices of a specific church?

    When the government starts handing out ordination licenses, then we can talk.

    The 14th Amendment is clear, and has for too long been ignored in application to marriage. Judge Walker finally brought this out, and I hope this case makes its way to the Supreme Court as I have every confidence that marriage equality will be upheld.

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  • Brian Kirwin

    Judge Walker…out?

    Interesting choice of words, from what I’m reading on other blogs.

  • Donald

    Brian don’t be so coy and stop teasing us!

    Do you mean that Judge Walker is gay?

    Wow! That means…oh, sorry: it means nothing. The judge’s sexual orientation is irrelevant to the case. If it was a reason to recuse then the pro-Prop-8 lawyers committed malpractice by not filing a motion to recuse before the trial.

    Of course, from reading the opinion, it seems that they were perfectly capable of utterly incompetent lawyering, so who knows

  • Donald

    Also, could someone explain to me how a state government granting civil marriage licenses to same-sex couples impairs *anyone’s* religious liberty?

  • Donald, it’s the same way that hate crime laws impair their religious liberty, which they believe give them the right to assault and murder homosexuals.

  • Chris Frashure

    Brian and Salt Lick,

    Do you two know the difference between a constitutional republic and direct democracy?

    We have rule by the law, which prevents one faction from usurping the rights of another. That is precisely what happened in California with Proposition 8.

    Hey, why don’t we put out a measure on a national ballot in 2012 to reinstate slavery! I mean, if that’s what the majority of the people decide, then it must be the law, right?

    Did you guys ever take a government class…hell, even a civics class in middle school?

    James, you’re logic is kindergarten. I don’t know how closely you’ve been paying attention to this issue, but it appears very little.

    Marriage can be defined by private institutions (religious institutions) as between a man and a woman, but once the government gets involved in the matter, it cannot discriminate for there is no rational basis – the point made by the judge in his decision. There is a difference between what private citizens/organizations can do and what the government can do. If the government, be it state or federal, recognizes a contractual agreement between two heterosexual people it must also recognize an equal contractual agreement between homosexual couples; call it marriage, a civil union, or what have you.

  • Brian Kirwin

    Chris, I disagree with your proposal to reinstitute slavery.

  • Famous Spearthrower

    As Mr. Mcguire points out in his second paragraph, Judge Walker’s decision could “theoretically” be creating a judicial right of review in all cases regarding religion. But what if marriage, as either an “institution”, “fundamental right” or mere relationship (under God) were argued to be a divine contract rather than one subject to any state overview? Would this perspective also make divorce similarly something that should not be considered within the purview or jurisdiction of the courts or remain such a viable source of revenue for divorce attorneys?

    Judge Walker’s decision is clearly flawed or at least tainted too by his own alledged homosexual lifestyle, for which he should have recused himself beforehand but now also provides the Appeals Court grounds to vacate and retry the case. In a new case, the plaintiffs can call Judge Walker as a witness, not as the deciding judge, but of course, he will have to be subject to cross examination This cross examination in turn, would provide excellent courtroom theater as every aspect of his psychological, mental and physical health would, to be fair, have to be open to public view including his own rationale for choicing such a lifestyle. If the plaintiffs did not call the Judge to testify the defendants should as well as perhaps every other gay couple or ex gay couple and heterosexual or even unwed or divorced couple in California, if not the whole nation.

  • @Famous Spearthrower
    Another stellar legal mind (not) commenting on stuff that he knows nothing about.

    Such the folks arguing in favor of Prop. 8 failed to raise the issue and ask for a new judge (for his alleged and nonexistent conflict of interest) during the original trial, that was waived and cannot be raised on appeal.

    Want to try again?

  • william e. sparks

    Ok, so what about biblical truth?What about showing Christian citizenship and saying no to gay marriage?I’m not coming down on either side I’m just thinking?What should we do?What would our father in heaven have us do??Thoughts anyone?

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