Thoughts on the Prop 8 Ruling

It's been a few days since California's Proposition 8 which enacted an amendment to the state constitution banning gay marriage back in November 2008 was overturned by Judge Vaughn Walker. However, I did not get a chance to finish reading Judge Walker's ruling until earlier today.

Now that I have read the decision I have to conclude that Judge Walker made the correct decision based on the information that was presented before him. I make this assertion because the proponents of Prop 8 and their attorneys simply did not put up a good argument and made a couple of key tactical errors.

Specifically, the attorneys chose not to have any of the proponents of Proposition 8 testify at trial and the two expert witnesses they put on the stand did not undertake original research concerning marriage and were destroyed on cross examination.

The main argument that was used at trial against same sex marriage and to justify Prop 8 was that same sex couples cannot procreate. Yes, it is true that same sex parents cannot procreate. But the ability to procreate has never been a prerequisite to marriage. While most opposite sex married couples have children there are other opposite sex marriage couples who choose not to have children or cannot biologically conceive children whether due to dysfunction or age. Yet heterosexual couples who are either unwilling or unable to conceive children are not prevented from entering into marriage. Prop 8 lead attorney Charles Cooper was unable to adequately address Judge Walker's questions on this very point. In the grand scheme of things it does seem grossly unfair that Adam and Steve are denied a marriage license because they cannot conceive a child when the state does not demand Jack and Jill conceive a child upon marriage.

Predictably, those who disagree with Judge Walker's decision are not criticizing him over the substance of his decision but because they believe he is homosexual. For his part, Judge Walker is mum on the issue. But it hasn't stopped Tony Perkins of the Family Research Council and Maggie Gallagher of the National Organization on Marriage from calling his sexual orientation into question. Perkins and Gallagher should be careful for what they wish. If Judge Walker can be recused for his alleged homosexuality then what is to prevent the ACLU from demanding a Catholic or Evangelical jurist be recused if a case concerning a cross or a nativity scene should come before them? Surely, Perkins and Gallagher are capable of a better argument.

Rich Lowry of National Review Online doesn't make an issue out of Walker's sexual orientation. However, he does accuse Walker of "judicial imperiousness." Yet Walker is hardly the first judge who could be accused of possessing such a quality. Consider the 60 Minutes profile of Supreme Court Justice Anton Scalia back in April 2008. When Scalia defends a given decision he does it with "because I said so" posture. Speaking of Scalia, I am sure Judge Walker's decision will end up in his lap and it would come as no surprise if Scalia is as dismissive of Walker's ruling as Walker was of California Proposition 8.