Vaughn R. Walker ruled that the majority
vote in favor of defining marriage as
being between persons of the opposite
sex was a violation of the state's constitutional
right to equal protection.
The ban still remains, due to a decision
by a three-judge panel of the United
States Court of Appeals for the Ninth
Circuit not to change the current situation
until after they hear arguments on an
appeal, scheduled for December. The
most likely outcome is that the case
will eventually reach the Supreme Court.
is, however, a question mark over whether
the defenders of Proposition 8 have
legal standing to appeal. California
state authorities have refused to appeal
and the appeals panel will decide first
on the issue of standing.
Judge Walker's decision came in for
harsh criticism due to what many consider
its lack of objectivity. Even before
he handed it down, Austin Ruse pointed
out many troubling elements in how the
case had been conducted in an article
posted on the Catholic Thing Web site.
his July 16 article, Ruse reminded readers
that the Supreme Court had stepped in
to stop the televising of the trial.
Walker had wanted a "show trial,"
Ruse argued. In fact, four expert witnesses
for the Proposition 8 case withdrew,
fearing reprisals if they testified.
This followed numerous cases of hostile
actions by homosexual activists towards
those who had donated to the Proposition
Following the decision immediate criticism
came from the Catholic Church. “Marriage
between a man and a woman is the bedrock
of any society," declared Cardinal
Francis George, president of the United
States Conference of Catholic Bishops,
in an Aug. 4 joint statement with Archbishop
Joseph Kurtz, chair of a committee set
up to defend marriage.
"The misuse of law to change the
nature of marriage undermines the common
good,” they said. “It is
tragic that a federal judge would overturn
the clear and expressed will of the
people in their support for the institution
of marriage. No court of civil law has
the authority to reach into areas of
human experience that nature itself
has defined,” asserted.
Out of control
There was also condemnation of the decision
from those in favor of same-sex marriage.
"When a judge in California found
that same-sex couples have a right to
wed, he cemented the widespread notion
that the courts are out of control and
that the Constitution means whatever
judges want it to mean," said Steve
Chapman in the Aug 8 edition of the
Chapman declared himself in favor of
same-sex marriage and even polygamy,
but such changes should come from elected
institutions and not courts. "Thanks
to Judge Walker, the debate is no longer
about whether gays deserve protection
from the law, a debate they were steadily
winning," Chapmen commented. "It
is more about whether democratic processes
should be trusted to resolve the question,"
John Yoo, a law professor at the University
of California, Berkeley, also a supporter
of same-sex marriage, lamented Judge
Walker's decision in an article published
Aug. 12 in the Wall Street Journal.
He recalled how in his State of the
Union address last January, President
Barack Obama attacked the justices of
the Supreme Court for an unpopular decision
on campaign financing. The president
then went on to ask Congress to overrule
the court's decision, thus restoring
settled constitutional law.
to Judge Walker, gender no longer forms
an essential part of marriage and any
position to the contrary is simply irrational,
Yoo noted. But the Constitution did
not set up the federal courts to correct
all the nation's problems or to engage
in social engineering, Yoo argued.
introducing same-sex marriage by judicial
means will only guarantee decades of
conflict, as happened with abortion
when the Supreme Court in the 1973 Roe
v. Wade decision, he pointed out.
Tim Wildmon, president of the American
Family Association, accused Judge Walker
of making a political statement in his
decision. Writing in the opinion pages
of the Aug. 13 edition of the Los Angeles
Times, Wildmon referred to the argument
that marriage being restricted to heterosexuals
is similar to the ban in the past on
persons of different races being able
In reply to this, Wildmon quoted an
undated statement by Colin L. Powell,
who said: "Skin
color is a benign, nonbehavioral characteristic.
Sexual orientation is perhaps the most
profound of human behavioral characteristics.
Comparison of the two is a convenient
but invalid argument."
Regarding Judge Walker's affirmation
that opposition to same-sex marriage
is only based on religious or moral
considerations, Wildmon argued that
this is clearly a case of a judge imposing
mere personal opinions. This is a clear
case of judicial tyranny, something
that the founding fathers had warned
The attack on defenders of heterosexual
marriage that they are motivated by
religious prejudice is common. A useful
reply to this came in the second book
of a series titled "Why vs Why"
in which contrasting views on topical
issues are books laid out in debate
form. In the second one titled "Gay
Marriage," published in May by
Australian publisher Pantera Press,
Bill Muehlenberg took up the case against
Muehlenberg, secretary of the Family
Council of Victoria, set forth a series
of reasons, none of them based on religious
1. It negates what marriage is. Marriage
is not just a social construct, but
a cultural universal. Marriage is the
basis for family formation and is not
simply a way of legitimizing sex. Evolutionary
biologists acknowledge that male-female
bonding in lasting pairs was the critical
step in human evolution and is something
built into us by nature.
2. The percentage of homosexuals who
want to marry is very small and in places
where it has already been legalized
there have been relatively few same-sex
marriages. It has been legal in the
Netherlands since 2001 and only about
4% of homosexuals married during the
first five years after legalization.
3. There is another agenda here. A fundamental
goal of the homosexual lobby is the
complete social and public endorsement
of them. Being able to marry is like
having a stamp of approval from governments
and society. It also changes the institution
of the family and essentially redefines
marriage out of existence.
4. Not all relationships are alike.
Homosexual relationships are much more
unstable and promiscuous than heterosexual
ones. Research has also found that among
married homosexual couples the rate
of divorce is much higher than for heterosexual
5. Claims of discrimination and denial
of rights are spurious. People are entitled
to the benefits of marriage if they
meet the requirements. Just as family
members and minors cannot marry, so
too homosexuals cannot. Social goods
are denied to all sorts of people and
that is how life operates. Societies
discriminate in favor of heterosexual
unions because of the social good derived
from them. Homosexuals are seeking to
re-write the rules to get all the benefits,
while avoiding the obligations.
6. The arguments used to justify legal
same-sex marriage could be used to legalize
incest, polygamy or any number of sexual
7. It is not good for children. In most
cases a child will do better with a
mother and a father. As well children
need role models as they are growing
up. Children should be given priority,
and not used as political footballs.
These arguments, amply documented in
the book, show clearly just how wrong-headed
was Judge Walker's decision.