NASSAU COUNTY CIVIC ASSOCIATION, INC.
"The government is us, we are the government, you and I." Teddy Roosevelt
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NASSAU COUNTY CIVIC ASSOCIATION, INC. "The government is us, we are the government, you and I." Teddy Roosevelt |
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August 12, 2010
Marriage and Morality
The case for California's prop 8
In a bizarre ruling on the constitutionality of California's Proposition 8
which limited marriage to opposite sex couples, Federal Judge Vaughn R.
Walker found the ban unconstitutional citing due process and equal
protection violations. The openly gay Judge predicated his ruling on the
subjective opinion of several so called "experts" who testified in favor of
gay marriage and on his own biased view that there is simply no rational
basis to restrict marriage to those of the opposite gender. He went on to
methodically reject every argument put forward by the proponents of the ban
by rehashing the talking points of gay marriage advocates and weaved
together a 136 page decision that uses discrimination as the common
denominator in his ruling.
When a court is required to make a determination as to whether a
law or policy is constitutional, there are three levels of scrutiny or
review that can be applied; rational basis, intermediate scrutiny or strict
scrutiny. The most rigorous is "strict scrutiny" which is a
heightened state
of review. This level of review is applied when a fundamental constitutional
right is violated such as right to a fair trial or those rights that are
protected by the 14th amendment such as due process and equal protection.
For a law or policy to withstand this level of review, it must past a three
pronged test; the law or policy must serve a compelling state interest, must
be narrowly tailored and must be the least restrictive in order to achieve
this interest. An example of the application of this standard is when a
suspect class is involved such as race or national origin. In regards to cases
involving sexual orientation, the Supreme court has never applied "strict
scrutiny" in its review but has relied on "rational basis". The
latter level of
review only requires that a law or policy must be rationally related to a
legitimate governmental interest.
Judge Walker ruled that marriage is a "fundamental right" under the 14th
amendment's due process clause triggering the requirement of "strict
scrutiny". In a contorted effort to qualify marriage in his worldview, the
judge made the following determination, "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
exclusion [against gay marriage] exists as an artifact of a time when the
genders were seen as having distinct roles in society and in marriage. That
time has passed." So based on the court's revised definition of marriage,
the judge concluded that this was not a new right but an historical right.
Considering the Judge's desire to rule on his beliefs versus the historical
significance of marriage, he blindly disregarded the short tumultuous history of
homosexual marriage versus the extensive and significant role of government
in promoting traditional marriage. Thus the plaintiffs were indeed seeking a
right not found in our Republic's history.
California and other states have come to recognize that the concept of gay
marriage is a political loser. So in an effort to politically straddle both
sides of the issue, states have opted to defend marriage in name while
capitulating on substance. This has been accomplished by limiting "marriage"
to heterosexual couples and enacting parallel legal schemes that grant full
marriage rights to homosexual couples. These schemes are referred to as
Domestic Partnerships which are for the most part interchangeable with Civil
Unions.
One key difference between the two
is their legal recognition from state to state. Those states that accept the
authority of the 1996 Federal Defense of Marriage Act are not required to
recognize "gay marriages" from other states but those that do may not
recognize the other legal schemes due to their novelty.
So
it comes as no surprise that the Judge found that there really was no
difference between the two in terms of marriage rights except for the
limitation on who can enter into a "marriage" and who can enter into a
"domestic partnership, a distinction that rises to the level of separate but
unequal; "The record reflects that marriage is a culturally superior status
compared to a domestic partnership. California does not meet its due process
obligation to allow plaintiffs to marry by offering them a substitute and
inferior institution that denies marriage to same sex couples." This is
precisely why compromising on substance is simply conceding defeat to those
who wish to re-define marriage. The ruling highlighted the hypocrisy of
defending words over substance.
In another form of legal tapestry, the judge determined that maintaining
marriage as the union of one man and one woman is a form of sex
discrimination as well as sexual orientation discrimination and violative
of the equal protection clause. How can marriage discriminate on the basis
of sex when any woman and any man can enter into a marriage? The only
parameter is that the parties must be opposite sex couples. He then goes on
the classify sexual orientation as a "suspected class" similar to race and
uses the heightened standard of "strict scrutiny" but goes on to state 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". He further establishes
his opinion on the belief that there is no difference in gender,
"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". Based on this view, there should be no
separate rest rooms, no male or female sports and no segregation of
the sexes in military housing. In the Judge's view, gender is now
meaningless. This is the same theory championed by the Obama administration
which now allows U.S. Passport holders to decide what gender is appropriate
for their identity relative to how you feel. New York City health officials
came close to allowing city residents to change their gender (sex) on their
birth certficate, however the idea was ultilmately rejected.
Stable marriages are an integral part of a healthy society. The debate over the cause of societal breakdown has been firmly decided on the facts, the breakdown of the nuclear family and the rise of single parent households without the involvement of a father. Yet the Judge comes out of left field with his opinion, "Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted." He then goes on to find that there is no difference in a child's developmental outcome whether being raised by two fathers or two mothers versus a nuclear family and declares that "the research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology." More then 45 years ago, President Lyndon B. Johnson acknolwedged the state's interest in promoting the nuclear family albeit a misguided big government solution,"The family is the cornerstone of our society. More than any other force it shapes the attitude, the hopes, the ambitions, and the values of the child. And when the family collapses, it is the children that are usually damaged. When it happens on a massive scale the community itself is crippled."
The ruling went on to reject any moral or religious objection to gay marriage and further went on to find that those who oppose gay marriage have engaged in bigotry, "Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.... Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples". He further went on to find, "The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples." He then erroneously compared the ban on gay marriage to previous restrictions on inter racial marriages; "Race restrictions on marital partners were once common in most states but are now seen as archaic, shameful or even bizarre," he added. "Gender no longer forms an essential part of marriage; marriage under law is a union of equals." The apparent conclusion is that no one has a legal right to oppose the radicalism of the gay agenda or any other issue on moral grounds as opposition constitutes bigotry. Will the government now feel compelled to stamp out this bigotry by bringing criminal charges or civil litigation against people of faith? While this may seem unlikely, just look to Canada where an opposing view is considered a hate crime.
There will be serious consequences to our society if the Judge's ruling is
allowed to stand. In particular, any law that an unelected judge believes is
based on a morality system that is contrary to their view will be
subject to this subjective standard of review. For example, prostitution
involves the selling of sex for money. The act of sex in of itself on
private property is not a crime. The state has decided that exchanging money
for sex is immoral and harmful to society due to its consequences. With the
new standard of review in place, a court can determine that the mere
exchange of money is a private matter between consenting adults and the law
targets mostly women subjecting a specific group to unlawful discrimination. The same
standard can be applied to group marriage and the age of consent, two items
in particular that are part of the 1972 Gay Rights Platform. Where does it
end?
It is without question that opponents and proponents of
homosexual marriage have an opinion as to the morality of gay marriage. The
question is who gets to decide which value system prevails? The ruling of
one Judge overturned the will of more then
seven million California voters who voted to preserve marriage as the union of
one man and one woman. Jefferson had it right when he said,
"One single object... [will merit] the endless gratitude of the society:
that of restraining the judges from usurping legislation."
| Click here to read the court's decision. | Click here to read the 1972 Gay Rights Platform |