The Daily Journal posted the following article by Dean R. Broyles on August 30, 2010 -
Federal District Court Judge Vaughn Walker's recent legal opinion striking down Proposition 8 and creating a new "constitutional" right to same-sex "marriage" should be rejected by anyone who values the U.S. Constitution, the rule of law, and common sense. In his opinion, and I emphasize "opinion," Walker first creates an unrecognizable post-man and post-woman world and then coercively "invites" us to join him. For the sake of the common good of our beloved country we must decline his invitation.
In his work of legal fiction, Judge Walker repeatedly criticizes Proposition 8 proponents for enacting a constitutional amendment that he asserts is only based on personal religious beliefs. He argues that such "private biases" cannot be tolerated as a basis for public laws. Yet, what is abundantly clear from a careful reading of his opinion is that Walker himself harbors deep philosophical pre-suppositions or "biases" which he barely camouflages and which he shamelessly brings to bear in forming a new constitutional right to same-sex "marriage." Most of his opinion reads more like a series of statements of faith rather than findings of fact.
It is not surprising that Walker is one of a few openly gay judges on the federal bench. What is astonishing is that he was allowed to adjudicate this case. Throughout his opinion it is abundantly clear that, as a homosexual man, he is a staunch supporter of the homosexual legal agenda. As such, Walker, in the interest of justice, should have recused himself and left the judging to a less biased and more objective jurist.
Ironically, Walker criticizes Proposition 8 proponents and California voters for enshrining personal moral (religious) beliefs about human sexuality into the law. His statement is a variation of the belief that "You can't legislate morality." But all legislation reflects morality (or your worldview) on some level. In fact, most of our laws in the United States come from the English Common law, which was based largely on biblical moral principles. Are we to replace our entire legal code? However, the real question is whose morality should public legislation reflect? Here, the two primary options are a thoughtful, reflective, objective Judeo-Christian morality or the selfish, subjective atheist morality of the secular left. As our Founding Fathers acknowledged, the first serves the common good, the second serves itself. When secular humanists repeat this mantra, what they really mean is that they don't want society to legislate a morality to which they personally object, namely a Judeo-Christian morality. Yet, hypocritically, Walker sees no problem with enshrining into law his personal moral beliefs about human sexuality.
In essence, Walker announces in his opinion that society has "evolved" to a level of consciousness where we must move beyond "archaic" Judeo-Christian notions of morality to a new legal age where only sage atheist judges can guide us to even higher levels of existence. In that sense, it is most fitting that Walker sits on the bench in San Francisco, a center of 1960's social upheaval.
In support of his creation of a new right to same-sex "marriage," Walker buys into several assumptions that defy reality. First, he accepts and embraces the secular humanist myth that gender doesn't matter. To Walker, men and women are the same. However, in so declaring, Walker ignores the obvious, real, meaningful, and scientifically proven differences between men and women.
And having "androgen-ized" men and women into a new genderless species that "Saturday Night Live" cleverly characterized as "Pat," Walker proceeds to announce a series of absurd conclusions. First, because there are no longer any differences between men and women, a so-called "marriage" relationship between two men or two women is no different than the relationship of a man and a woman ("Gender no longer forms an essential part of marriage; marriage is a union of equals.") Second, since gender doesn't effectively exist anymore, moms and dads are meaningless categories for children in the context of the family and are therefore fundamentally unimportant categories for purposes of child rearing ("The [g]ender of a child's parent is not a factor in a child's adjustment," and, "Having both a male and a female parent does not increase the likelihood that a child will be well adjusted.") In Walker's world, despite social science evidence to the contrary, it does not matter a whit whether a child has a father and mother. Adam and Steve (or Eve and Evita) can just as readily raise a healthy child as Adam and Eve. Implicitly, there is nothing unique or special that a child needs to get from his or her mother or father.
But the social science research does not support Walker's warped conclusions. The fact is that traditional man-woman marriage is an important social good associated with an impressive broad array of positive outcomes for children. See William J. Doherty, et. al., 2002. "Why Marriage Matters: Twenty-One Conclusions from the Social Sciences" (New York: Institute for American Values). All the studies show that children do better with both a mother and a father. Neither is expendable in the family equation. The long term commitments of marriage bring stability to children and marriage is the means by which children are nurtured and socialized to become contributing members of society. It is well documented that children from intact mom-dad marriages have significantly lower incidents of premarital sex, underage drinking, school expulsion, shoplifting, fighting, suicidal feelings and other negative behaviors. Walker is dead wrong. Proposition 8 was not about religion imposing outdated notions on everyone. It was actually about protecting what is best for everyone - the common good.
In support of his radical world view he foists upon us, Walker willingly enlisted the aid of a myriad of plaintiff's Harvard and Yale-educated elitist scholar "expert" witnesses, many of whom themselves are radical homosexual activists with obvious axes to grind. Predictably, Walker failed to even consider whether the personal beliefs or biases of these activist "experts" could undermine their credibility. And while criticizing Proposition 8 proponents' experts for not basing their expert opinions on facts and data, he buys wholesale the opinions of plaintiffs' experts without referencing the actual facts or data which purportedly support their opinions. Not surprisingly, Walker found these experts credible and reliable, while he found none of the testimony of the proponents' experts valid.
However, Walker is not just biased on the facts, his opinion clearly also demonstrates that he is incapable or unwilling to follow the U.S. Constitution or case precedent related to the Due Process Clause or the Equal Protection Clause of the 14th Amendment.
Walker shamelessly tortures the Due Process Clause and existing precedent. The Due Process Clause of the 14th Amendment provides that no "State [shall] deprive any person of life, liberty, or property, without due process of law." To determine whether a right is fundamental and therefore constitutionally protected, the court must inquire into whether the right is rooted "in our Nation's history, legal traditions, and practices." Washington v. Glucksberg, 521 US 702, 710 (1997). Under this standard, while the courts have repeatedly recognized traditional heterosexual marriage as a fundamental right, same-sex "marriage" has not. That is because same-sex "marriage" is clearly not a right, which by any means is rooted in "our Nation's history, legal traditions and practices." However for Walker, as for all activist judges, the Constitution and court precedent dare not constrict a creative jurist who is busy legislating from the bench. Employing raw verbal trickery, Walker by judicial fiat declares that what gays and lesbians are really seeking is "marriage," not gay marriage; therefore, according to his tortured logic, they are merely seeking an existing fundamental right protected by the Constitution.
Walker also ignores well-established Equal Protection Clause precedent to meet his legal goals. After boldly announcing that all distinctions between men and women are magically erased, he concludes that "Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest." What?
The Equal Protection Clause of the 14th Amendment provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." When a law creates a classification but neither targets a suspect class nor burdens a fundamental right, the court presumes the law is valid and will uphold it as long as it is rationally related to some legitimate government interest. See Heller v. Doe, 509 US 312, 319-320 (1993).
This is exactly what Proposition 8 did and therefore should have been presumed valid by Walker. Proposition 8 targets no suspect class. Sexual orientation is not a suspect class and has never been legally recognized as a suspect class, whereas race, ethnicity and religion have been. And creatively throwing "gender" discrimination into the mix does not magically transform man-woman only marriage into a suspect classification. Nor did California's constitutional amendment burden a fundamental right since, as discussed above, there is no fundamental right to same-sex "marriage." Finally, as is further discussed below, Proposition 8 is "rationally related" to the legitimate state interest of promoting marriage and protecting children for the common good.
Walker's opinion is a result looking for a rationale. However, the result, same-sex "marriage," finds no support in the facts or the law. The traditional family is the basic foundation for all healthy societies and is the best means by which we can safeguard our future by caring for the next generation. The undeniable fact remains that families with both moms and dads serve the common good of society. Notwithstanding Walker's desire to the contrary, it is a scientific fact that opposite sex couples are superior to same-sex couples when it comes to the commitments of marriage and family matters. As a Nation, we ignore this truth to our peril.
Dean R. Broyles is president and chief counsel for The Western Center for Law & Policy.