All Worked Up about What’s Next


If I had a quarter for every time I got into a discussion about gay marriage over the past ten years or so…I’d have lots and lots of quarters. It’s been one of the hottest hot-button issues over the past decade, and I’ve gotten into it with everyone from the editorial board of the local daily rag to elected officials to my brother-in-law to passersby on the street. I’m talking about lots and LOTS of quarters.

Invariably, for me the discussion comes down to one central issue. I say, “Give me one GOOD reason to deprive homosexuals of the same marriage and property rights that heterosexuals enjoy.”

Just as invariably, I hear about how gay marriage would damage “the sanctity of marriage” or of how straight marriage is the best way to raise children or about how homosexuality is immoral and against God’s wishes and all that, and when they’ve spoken their piece I respond with, “No, I said give me one GOOD reason.”

You see, every popular argument against gay marriage is so flimsy and weak and unimaginative that I can easily respond with stirring and logically coherent counter-arguments that whiz past them like a Serena Williams forehand. They refer to the “sanctity of marriage” and I respond with the fact that marriage is and always has been a property contract; there’s nothing “sanctified” about the distribution of property. I can reference half a dozen sociological studies which show that children of gay relationships are typically just as well-adjusted as children of traditional male-female relationships. When the other side brings up God’s disapproval, I respond with a long list of other things of which God disapproves, from women dressing as men to dietary rules to violations which warrant the death penalty, such as marrying outside one’s faith, working on the Sabbath and talking back to one’s father or mother.

In fact, I’ve spent so much time studying and dissecting arguments for and against gay marriage I think I ought to be a spokesman, or at least a Fox News talking head. Come to think of it, if instead of receiving quarters for every time I discussed gay marriage I got a hundred dollar bill, I’d really be raking it in.

I bring all this up because, if you’ve been living under a rock the past month or so, I should mention that the gay marriage debate has taken a seriously dramatic turn. I’m talking about California’s Proposition 8.

In case you’ve been living under that aforementioned rock for not just the past month, but for the past couple of years or so, let me sum up.

In early 2008, the California Supreme Court ruled that the state’s prohibition against gay marriage violated the state constitution, thus enabling homosexuals to join each other in holy matrimony. Predictably enough, the homophobic sticks-up-their-asses crowd hit the roof at the idea that consenting adults were going to marry whomever they wanted, and a campaign was launched to amend the California Constitution to repeal the Supreme Court’s decision and re-illegalize gay marriage. The ballot initiative was called “Proposition 8” and, to national attention, the initiative passed in November, 2008.

Gay marriage supporters of course appealed, and the case was heard in the latter part of January of this year by the Honorable Vaughn Walker of the U.S. Court for the Northern District of California. Judge Walker issued his ruling on August 4.

In a nutshell, Judge Walker ruled that Proposition 8 was and is unconstitutional, on a wide variety of grounds. To deprive homosexuals of the right to marry, Judge Walker concluded, was a deprivation of their fundamental rights. It was considered a landmark ruling.

What does it mean?

In the short term, nothing at all. Immediately after issuing the ruling, Judge Walker issued a stay of the order repealing Proposition 8, a stay which has, as of this writing, been continued until December to allow Prop. 8 proponents time to file with the U.S. Court of Appeals. In other words, while Judge Walker has concluded that homosexuals should have the right to marry, he’s not giving them that right until after Prop. 8 supporters have the chance to appeal to the next level.

And what is that, you may ask.

The next step is the United States Court of Appeals, which should hear the case and issue a ruling sometime in the next eighteen months or so. After that, the loser of the appeal will surely file another appeal with the United States Supreme Court. If the Supreme Court decides to hear the case quickly, they might do so by the fall of 2012 and issue a ruling sometime in the spring of 2013. MAYBE in three years, the matter will be settled. Maybe.

What does Judge Walker’s ruling mean in the long term? In the long term, the effects are profound; explosive; even, dare I say, earth-shattering. Speaking as a law geek and a political science geek, and having read the 136-page opinion several times over, I have to confess that Judge Walker has raised the bar when it comes to issues in the gay marriage debate.

Here’s what it boils down to. This case, dubbed “Perry v. Schwartznegger,” is unique compared to the many, many other gay-marriage court cases that have been weaving through the various jurisdictions of the American legal system over the last dozen years or so.

First, “Perry v. Schwartznegger” is a Federal case, applying Federal law; that is, the U.S. Constitution. Until now, every gay marriage case litigated across the country has been applying the law of the state in which the case was brought. A decision issued in compliance with the New York constitution applies only to New York. A decision issued in compliance with the Florida constitution applies only to Florida. When Massachusetts declared gay marriage legal, the ruling applied only to Massachusetts. Judge Walker’s ruling, applying Federal law, crosses state boundaries. If, as is expected, the U.S. Supreme Court hears the case and issues a ruling, that ruling must be followed by every state in the Union. The idea that a gay marriage made in Iowa can’t be acknowledged in Texas will be gone by the wayside. The Court’s decision will be applicable in all fifty states. Without question.

Secondly, Judge Walker issued his ruling as a trier of fact. That means that he sat in the position of a jury; he heard evidence, he weighed credibility of testimony, he considered the validity of every argument made. This is significant because one of the fundamental principles of American jurisprudence is that appeals courts can’t make decisions based upon factual evidence; only upon the applicable law. The U.S. Court of Appeals can’t consider whether this witness or that bit of testimony was as believable as Judge Walker thought it might be. The Court of Appeals (and the Supreme Court) can only consider whether Judge Walker applied the law in an inappropriate fashion.

Thirdly, and this is most important, Judge Walker heard every conceivable argument against gay marriage and, in his considered opinion, “Mene, mene, tekel upharsin.” (My humble apologies. Lately I’ve been reading a lot of the Old Testament.). For those not up on the Book of Daniel, the arguments against gay marriage have been weighed in the balance and have been found wanting.

Judge Walker’s decision considered every legitimate argument against gay marriage, and he, with the experience of more than thirty years on the Federal bench, concluded that those arguments just didn’t measure up.

The argument that children prosper most in a male-female household? No good. The evidence is contrary. The argument that traditional marriage must be preserved? Nope. There’s no legitimate state interest in preserving one form of relationship over another. The argument that God condemns gay relationships? Sorry. Moral objection alone cannot justify the deprivation of equal protection under the law.

Ultimately, it comes down to one essential fact. Opponents of gay marriage can’t come up with one GOOD reason to deprive homosexuals of the right to marry.

So good to be proven right.

What’s next?

Hard to say. MAYBE the U.S. Supreme Court will issue a ruling by the spring of 2013. Currently, the best guess is that if the court’s composition doesn’t change between now and then, Chief Justice Roberts and Justices Scalia, Thomas and Alito will vote the neo-conservative line and rule against legalizing gay marriage. By the same token, Justices Ginsberg, Breyer, Sotomayor, and Kagan can reasonably be expected to rule in favor of gay marriage. Which leaves Justice Anthony Kennedy as the deciding vote.

Justice Kennedy was appointed by George H.W. Bush, so he’s considered a conservative. However, Justice Kennedy also wrote the majority opinion in two of the most pro-homosexual rulings of the past twenty years. It’s been observed by more than one commentator that Judge Walker’s decision seemed to be a letter directly to Justice Kennedy, explaining Judge Walker’s ruling in language Justice Kennedy himself has used in the past in his own rulings.

What’s next?

MAYBE the court’s lineup won’t change between now and 2013. MAYBE the breakdown of votes will shift. MAYBE somebody in the “nay” column will, after due reflection, change his mind.

In any event, it’s clear that Judge Walker’s ruling was anything but the last word on the subject.

Stay tuned.

J.T. Benjamin
September 2010

“All Worked Up” © 2010 J.T. Benjamin. All rights reserved.

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