Will gay marriage become law of the land?

By Ben Boychuk and Joel Mathis

Now that Proposition 8 has been struck down, will gay marriage become the law of the land?

U.S. District Judge Vaughn Walker just struck down California's constitutional amendment restricting marriage to one man and one woman. That decision will certainly be appealed all the way up to the Supreme Court. Walker's logic was that Proposition 8 denies gay couples their "equal protection" rights under the 14th Amendment of the U.S. Constitution.

Should the high court settle the gay-marriage issue once and for all ― or leave it to the states to decide? Joel Mathis and Ben Boychuk, the RedBlueAmerica columnists, debate the issue.

Joel Mathis

Whether the Supreme Court strikes down gay-marriage bans may depend entirely on the attitudes and disposition of Justice Anthony Kennedy, who tends to be the swing vote on controversial issues. Reading his 2003 opinion in Lawrence v. Texas ― the ruling that struck down laws making homosexual sex a crime ― it's difficult to see how state bans on gay marriage will survive.

It is true that Kennedy, in his 2003 ruling, was careful to state that decriminalizing such sexual practices did not require formal government recognition of gay relationships. But the logic of that ruling is compelling in the context of gay marriage.

The logic was this: To use the law to set apart homosexual conduct "demeans the lives of homosexual persons," and thus is at odds with the guarantees of liberty provided by the U.S. Constitution.

Kennedy was right then, and he would be right now to say the same thing about gay-marriage bans.

Such a ruling would invariably bring cries of "judicial activism" from the right, but it's entirely appropriate for the courts to get involved. Since at least the late 1960s, the right to marry has been considered a "fundamental right" under the U.S. Constitution _and nobody seriously contests that. Fundamental rights, it should be noted, cannot and should not be contravened by legislative action or statewide referendums. They simply exist.

Walker correctly realized this in his ruling. Gay couples, he wrote, "do not seek recognition of a new right. To characterize (their) objective as 'the right to same-sex marriage' would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy ― namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages."

If the Supreme Court follows its own precedent, it will agree. And that will be a good thing.

Ben Boychuk

Conservatives often complain about judges who "overreach" and "legislate from the bench." Walker's ruling offers a spectacular example of what judicial overreach looks like, adorned in the language of modern social science.

"The evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples," Walker wrote.

In fact, what the evidence shows is that a clear majority of voters very much want to enshrine the institution of marriage as the union of one man and one woman. California has every interest in discriminating in favor of a definition of marriage long understood.

Marshalling one-sided testimony from social scientists led Walker to conclude: "Gender no longer forms an essential part of marriage," "parents' genders are irrelevant to children's developmental outcomes" and, incredibly, "the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage."

So, in other words, men and women are interchangeable, mothers and fathers don't matter, any two parents will do and redefining marriage to mean the union of any two people ― but why only two? ― is no big deal.

Taken seriously, nothing in Walker's ruling would prevent other aggrieved parties from making their case for marriage rights. Our law similarly "enshrines the notion" that monogamous couples are superior to polygamous couples, as well.

If polygamy or other outre relationships shock your sense of right and wrong, too bad. For as Walker instructs, "Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians." Walker simply asserts that voters' moral disapproval ―and nothing else ― led them to approve Proposition 8.

Who really believes that? A few judges, journalists and deconstructionist sociology professors, maybe. Not most Americans.

Walker's ruling won't be the last word on marriage. The evidence of that is overwhelming.

Ben Boychuk and Joel Mathis blog and podcast every week at http://www.freedompub.org and http://joelmathis.blogspot.com. The above article was distributed by Scripps Howard News Service (www.scrippsnews.com).