Walker, California Wrangler

Quite a lot has been said concerning the recent decision to overturn as unconstitutional the not-exactly recently passed Proposition 8 amendment to California's constitution. Everyone from the blogosphere to National Review to the American Principles Project has something to say about this egregious decision--not worthy of the name "legal" decision--handed down by the titularly-Honorable Vaughn Walker of the US district court in San Francisco.

Because I have already linked a large part of the response, and because there is so much said, I would like to focus on two columns. The first is by Professor Robert P George, who may be the nation's brightest legal scholar of his generation. The second is written by the Witherspoon Institute's Mr Matthew J Franck*.

Professor George likens this ruling to the court's previous badly-decided decision, Roe v Wade. I would say that it is equally worth comparing to Casey v Planned Parenthood, since in the end the "reasoning" which Kennedy used to reach the majority decision is similar to Walker's in that neither really made an attempt at reasoning, but rather handed down an opinion which brushes aside all counterarguments without so much as the courtesy of an answer. Writes Professor George,

Following California’s Proposition 8, which restored the historic definition of marriage in that state as the union of husband and wife, a federal lawsuit has been filed to invalidate traditional marriage laws.

It would be disastrous for the justices to do so. They would repeat the error in Roe v. Wade: namely, trying to remove a morally charged policy issue from the forums of democratic deliberation and resolve it according to their personal lights....Lacking any basis in the text, logic or original understanding of the Constitution, the decision became a symbol of the judicial usurpation of authority vested in the people and their representatives. It sent the message that judges need not be impartial umpires—as both John Roberts and Sonia Sotomayor say they should be—but that judges can impose their policy preferences under the pretext of enforcing constitutional guarantees.

That this sets a bad precedent ought to be clear to anyone, regardless of which side he may take in both the abortion and the gay marriage debates. To give the power utterly and without recourse to overrule a democratically passed law to one man (or even a group of men smaller than the whole population) is to destroy the very basis of a democracy; similarly so, when this power is given to overrule the legislation of elected officials. So long as one branch acts contrary to the laws of the land, the charge of tyranny is justly leveled against that branch. By inflicting their own views upon our country, over and above the will of us, the people, the judiciary branch has usurped power which is not legitimately theirs.

In the case of Roe v Wade, the justices acted believing that they would have the final say in the abortion debate. By imposing their will on the country, they ignited a culture war the likes of which is unparalleled in the West. In the case of Roe, the question is whether all have a right to life, or whether this is merely a legal fiction which may be granted to some of the population which meets some arbitrary though predetermined condition (e.g. birth). At the center of this debate are the definitions of life, humanity, and personhood, and at stake is the right to life for every human being.

Gay marriage similarly hinges around a set of definitions, primarily, "what is marriage?" In turn, the stakes are what is to comprise a basic family unit--itself the fundamental building block of civilization. Is marriage to persist as a union between one man and one woman--and thus to serve a procreative purpose? Is marriage to have any semblance of permanence--already damaged by divorce laws--which is itself necessary for both procreation and the fostering of intimacy? As Professor George notes, all of this is at stake in this arm of the culture war:

Candid and clear-thinking advocates of redefining marriage recognize that doing so entails abandoning norms such as monogamy. In a 2006 statement entitled “Beyond Same-Sex Marriage,” over 300 lesbian, gay, and allied activists, educators, lawyers, and community organizers—including Gloria Steinem, Barbara Ehrenreich, and prominent Yale, Columbia and Georgetown professors—call for legally recognizing multiple sex partner (“polyamorous”) relationships. Their logic is unassailable once the historic definition of marriage is overthrown.

Is this a red herring? This week’s Newsweek reports more than 500,000 polyamorous households in the U.S....Because marriage has already been deeply wounded, some say that redefining it will do no additional harm. I disagree. We should strengthen, not redefine, marriage. But whatever one’s view, surely it is the people, not the courts, who should debate and decide. For reasons of both principle and prudence, the issue should be settled by democratic means, not by what Justice Byron White, in his dissent in Roe, called an “act of raw judicial power.”

Divorce wounded the institution of marriage, and wounded it grievously. However, the redefinition of marriage--first via gay marriage and later by polygamy, polyandry, etc--will ultimately kill it, at least as an institution within society**. A wounded institution may yet recover, but a dead one can only be buried and mourned.

For conservatives and Christians in this culture war, perhaps the most consoling and yet frustrating point is that at times the other side offer are what Mr Franck calls "transparently bad." In the case of Walker's ruling, much of the argument hinges upon the conclusion that "gender no longer forms an essential part of marriage":

This line, quoted everywhere within hours with evident astonishment, appears to be the sheerest ipse dixit—a judicial “because I said so”—and the phrase “no longer” conveys that palpable sense that one is being mugged by a progressive. But Judge Walker’s remark here is actually the conclusion of a fairly complex argument. The problem is that the argument is not only complex but wholly fallacious....When “the genders” are no longer “seen as having distinct roles,” it is revealed that at marriage’s “core” there is ample space for same-sex couples too. Since “gender no longer forms an essential part of marriage,” indeed since it never really did, “plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States.” There, you see? There is something eminently conservative about the admission of same-sex couples to the marital bond. What could we have been thinking, denying them this right for all these centuries?

Judge Walker seems to have committed the fallacy of composition—taking something true of a part and concluding that it is also true of the whole of which it is a part. If it is true that “gender” no longer matters as it once did in the relation of husband and wife, he reasons, therefore it no longer matters whether the relation is one of husband and wife; it may as well be a relation of husband and husband or of wife and wife, since we now know that marriage is not, at its “core,” a “gendered institution.” But restated in this way, it is quite plain that the judge’s conclusion doesn’t follow from his premises. To say that the status of men and women in marriage is one of equal partners is not to say that men and women are the same, such that it does not matter what sex their partners are. The equalization of status is not the obliteration of difference, as much as Judge Walker would like to pretend it is. [All emphases in original]

Here, then, is the real heart of the matter: does equality necessarily imply interchangeability? The judge's decision--indeed, the general philosophical modus operandi of the gay marriage movement, not to mention several other prominent ideologies--hinges on an affirmative answer to this question. Unfortunately, actual evidence for the validity of this assumption is lacking; indeed, there exist counter-examples, as any mother-father couple might testify.

Mister Franck concludes by saying that,

Perhaps here, in this nadir of absurdity, we have found the real fundament of the judge’s thinking. Citizens who wish to defend the institution of marriage as they and their families have known it all their lives, and for countless generations, are irrational bigots. Worse still, if they are moved to act because of the union of their faith with their moral opinions, they are crazy religious folk, bent only on harming others whom they merely “dislike” on grounds that cannot possibly be defended before a tribunal of right-thinking people. And those others, the same-sex-couple plaintiffs? They must be rescued from the “harm” to their feelings that results from their exclusion from a historic civil and moral institution that has never hitherto been thought to have been built for them.

That Judge Vaughn Walker evidently cannot grasp what an effrontery his opinion is to the faith, the morals, and yes, the feelings of the vast majority of his fellow Americans is the final irony of his ruling in Perry v. Schwarzenegger. But perhaps he can be taught a lesson about the violence he has done to the rule of law, and to the United States Constitution. His fellow citizens, more accustomed than he to governing themselves by canons of reasoned judgment, may have to teach the lesson, if his superiors on the bench will not do so.

A further irony is added, which is that one result of the alleged bigotry of Christians in general and conservatives in particular is that their own rights are often trampled by the boots which march inexorably towards "progress." Witness, for example, the forced closing of the Boston Area Catholic Charities adoption services (and the resulting collateral damage done to children who will now remain orphans), or the myriad lawsuits launched against various Christian individuals and businesses, from eHarmony to photographers to church camps. Christians must keep in mind that we are engaged in a culture war against a side whose preferred tactics might best be described as "scorched earth."

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*With a tip of the derby cap to Miss Audrey Pollnow, who beat even the Public Discourse's email notification in getting me the link.

**Sure, it will be preserved intact by the Church, but then the Church may be driven underground, or at the least out of the public sphere. The gates of hell may not prevail here (see Matthew 16:18), but the laws and society will for a time. I should add, however, that the Church's preservation of this sacrament also gives hope for its resurrection as an institution--though it may be centuries before that may happen.