A Fine Argument for Gay Marriage, but a Flawed Legal Opinion

If, in his opinion overturning California’s Proposition 8, Federal District Judge Vaughn Walker were making an argument for gay marriage to the elected members of a state legislature, the first 60-odd pages of his opinion would be a fine contribution to the debate.


In those pages, he summarizes the benefits of marriage, how the institution promotes social stability and personal happiness (among other things), and how extending those benefits to same-sex couples would most assuredly benefit gay people. Indeed, Dale Carpenter, Earl R. Larson professor of civil rights and civil liberties law at the University of Minnesota, called the opinion overall “a pretty good compendium of a policy brief for SSM.

Walker’s ruling, however, is not a policy brief, but a judicial decision striking down a popular provision in the California Constitution stipulating that the state only recognize unions between one man and one woman as “marriages.” With his decision, the judge prevented the people from settling the controversial issue of how states could recognize same-sex couples and personally assuming the responsibility for determining how the state may regulate the unions it recognizes as married.

To be sure, he makes a good case for gay marriage, but a lousy one for usurping the power from the people to decide this issue. In this sense, his ruling becomes a political boon for the GOP — as it can tie his decision to the increasing sense that our governing bodies (e.g., Congress and the various bureaucracies it has created) are disregarding the popular will as they make laws and set policy.


Last month in the New York Times, Jonathan Rauch, perhaps the most articulate advocate of same-sex marriage, saw the arguments for maintaining the “ban” in the context of the people reaching a consensus in settling a controversial issue:

The argument for upholding California’s gay marriage ban has merit — not because the policy is fair or wise (it isn’t) but because it represents a reasonable judgment that the people of California are entitled to make. Barring gay marriage but providing civil unions is not the balance I would choose, but it is a defensible balance to strike, one that arguably takes “a cautious approach to making such a significant change to the institution of marriage” (as the lawyers defending Proposition 8 write in one of their briefs) while going a long way toward meeting gay couples’ needs.

Judge Walker’s decision, should it survive appeal, effectively prevents the people of California from balancing the competing interests of those who see marriage as an institution reserved for different-sex couples and those, including yours truly, who believe the state should recognize same-sex unions. While voters approved a measure providing that the state recognize only marriages between individuals of different sexes, they haven’t objected to the state’s domestic partnership program.


Indeed, as I wrote in these pages last May when the California state Supreme Court upheld Proposition 8, “the very language of the [court’s] ruling indicates a strong affirmation of this policy which grants same-sex couples the same privileges as married different-sex couples.” A balance had been struck. Now, with the stroke of his pen, Walker overturns that balance.

Whereas he often makes a strong argument for gay marriage, his constitutional reasoning is particularly sloppy. He reminds us that the Due Process Clause “protects individuals against arbitrary governmental intrusion into life, liberty or property,” but fails to show how Proposition 8 deprives any individual of his life, liberty, or property. Instead, he makes an incredible leap from that reading of the Constitution to a list of court decisions finding a “fundamental right to marry under” that clause. He did not cite the debates from the 39th Congress which passed the Amendment and sent it to the states for ratification.

Instead of relying on the plain meaning of the Constitution, he dismisses what, for as long as we have recorded evidence of marriage, has been a defining aspect of the institution — sexual difference:

The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry.


Yes, but throughout that evolution, marriage has indeed remained a gendered institution. While legislatures gradually removed statutes which privileged one sex over another, they, on the whole, failed to remove the stipulation that partners be of different sexes.

In making his equal protection argument, Judge Walker is equally dismissive of sexual difference:

The tradition of restricting marriage to opposite-sex couples does not further any state interest. Rather, the evidence shows that Proposition 8 harms the state’s interest in equality, because it mandates that men and women be treated differently based only on antiquated and discredited notions of gender.

Antiquated and discredited notions of gender?

He sounds more like a sociologist writing in 1968 than a jurist writing in 2010. Back then, college faculties (and the popular culture) were full of scholars and others proclaiming that the differences between men and women were merely social constructs.

In the intervening years, however, a whole host of studies from neuroscientists, psychologists, sociologists, and anthropologists have found that sexual differences are real. In his 2002 book, The Blank Slate: The Modern Denial of Human Nature, Harvard Psychology Professor Steven Pinker observed: “Neuroscience, genetics, psychology, and ethnography are documenting sex differences that almost certainly originate in human biology.”


Evolutionary biologists Richard Wrangham and Dale Peterson have even found these differences in our primate “cousins.” In her recent book on the male brain (a companion to her 2006 study of the female brain), Psychiatry Professor Louann Brizendine writes: “Male and female brains are different from the moment of conception.”

Instead of notions of difference between the sexes being antiquated or discredited, they have in fact been confirmed by science.

On this point though, the science notwithstanding, Judge Walker might have a case had enough states ratified the Equal Rights Amendment to include it in the Constitution. He bases casual dismissal of the sexual difference issue neither in the actual language of the Constitution nor in the latest findings of science.

In sum, while Judge Walker makes some fine arguments for gay marriage in his decision, his constitutional scholarship is mighty sloppy. Because the judge dismisses “the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review,” Carpenter believes “he invites a higher court to undermine it.”

I agree. Gay activists may be giddy today, but they may be headed for future disappointment as they were when the California Supreme Court mandated that the state recognize same-sex marriages, only to find that decision overturned by Proposition 8. One judge may have overturned that popular provision today, but other judges will review his findings and will surely adopt a standard of review more closely rooted in the actual text and original meaning of the federal Constitution than in long-since discredited notions about the social construction of sexual difference.



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