Prop 8: Three Options for Social Conservatives

-By Timothy Dalrymple

While the conclusion Judge Vaughn Walker drew in Perry v. Schwarzenegger is completely unsurprising, the scope of the ruling and its many declarations on matters ethical, psychological, and theological is nothing short of astonishing. To call it a case of judicial overreach is to indulge in severe understatement. Judge Walker not only ruled that Prop 8 violated the equal protection and due process clauses, he held forth on everything from the motives of California voters to the essential nature of marriage to the appropriateness of voting according to moral and religious convictions. What was supposed to be a trial of the constitutionality of Proposition 8 became a trial of the rationality of those who oppose same-sex marriage — and Perez Hilton could hardly have supplied a more one-sided conclusion. Prop 8

Judge Walker was conscious, of course, that his ruling would be appealed all the way to the Supreme Court. Appellate courts do not generally rehearse the discovery of “facts.” They investigate whether the right laws and precedents were rightly applied to the facts of the case. Yet Judge Walker strategically located his most explosive claims — which are not “facts” at all but his own moral intuitions — in the lengthy “findings of fact” portion of his ruling. He determines, for instance, that “Gender no longer forms an essential part of marriage.” Yet this, it must be admitted even by those who agree with the statement, is not a simple finding of fact. How was the judge able to determine this? What does it mean to be an essential part of marriage, and if it is no longer essential, then when exactly did it cease to be so? The attempt to discover demonstrable “facts” when it comes to matters of value, psychology, and theology was a misbegotten enterprise from the beginning. Some have suggested that Judge Walker, a practicing homosexual with a personal interest at stake, should have stepped aside. What is more relevant than Walker’s sexual orientation is the culture of which he is a part. Let us give him the benefit of the doubt that Judge Walker made an earnest attempt to rule impartially according to the facts. What appear as “facts” to him, however, are shaped profoundly by the plausibility structures of a liberal, pro-homosexual community. Walker cannot rule impartially on whether the state has a legitimate interest in encouraging heterosexual marriages, because he inhabits a worldview that makes it nearly impossible to take that possibility seriously. For Judge Walker, homosexual unions are obviously morally and socially equal to heterosexual unions, and homosexuals are obviously just as suitable as parents, because homosexuality obviously does not constitute a morally culpable set of decisions shaped by a disordering of the will, but is obviously genetically determined and therefore eludes moral categories. Since these things are so obvious, anyone who believes otherwise must do so by the force of bigotry and irrationality.

This is not necessarily to say that Judge Walker should have recused himself, but it does mean that his discovery of “facts” was predetermined from the outset, and would have been better avoided. This is why, as Gerard Bradley writes, Judge Walker “portrays those who supported traditional marriage in the Proposition 8 fight as not only wrong,” but “wrong in every decisive respect, and utterly so.” The discovery process was an elaborate act of judicial theater whose conclusion had been written long before the play began.

The question that confronts social conservatives now is: How shall we respond? What is the best strategy now when it comes to the same-sex marriage debate? I want to mention three options, and explain the third in detail.

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Comments

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  • What, exactly, is a "practicing homosexual"?

    How is that different from a run-of-the-mill homosexual?

  • In reply to CrazyLiberal:

    Good question. For that I have no answer.

  • In reply to CrazyLiberal:

    If the judge were heterosexual and ruled in favor of Prop 8, would there be people suggesting he had a personal interest and should have stepped aside?

  • In reply to Cheryl:

    My guess is that there would be people in the gay community saying just that. Wouldn't you think that would be a natural reaction?

  • In reply to publiusforum:

    Your guess would, in my view, be wrong.

    Can you cite any time when a judge decided a case in a way contrary to what gay rights advocates would consider friendly and was then criticized because of his or her sexual orientation?

  • In reply to Cheryl:

    Only if the judge were a "practicing" heterosexual, I guess.

    Publius didn't have an answer for that particular usage, but I do. A "practicing" homosexual sounds much scarier to those afraid of gay marriage than just a normal homosexual.

    Of course, even the word "homosexual" is scary to those people. I recently read about a poll asking whether gays should be allowed to serve openly in the military. When the word "gay" was used instead of "homosexual" the percentage supporting military service was something like 15% higher.

    Conservatives are experts at using loaded words to demonize those they oppose.

  • In reply to CrazyLiberal:

    ... said the person "demonizing" others for using words! LOL

  • In reply to publiusforum:

    Why don't you venture a guess as to why the author whose column you thought intelligent enough to post on your blog would have used such a strange phrase. Do you have a better explanation that I posited?

  • In reply to CrazyLiberal:

    That last questions should be ... Do you have a better explanation than the one that I posited?

  • In reply to CrazyLiberal:

    Actually, I posted it because I was asked to (hence why it is continued with a link to his site and the rest of the piece. I didn't post it all here). I have to say I was never that much into the whole gay marriage/no gay marriage issue.I am at turns ambivalent and then leaning toward the traditional stance. But I have not researched it enough to have a solid opinion. I really can see both sides. In fact, I've begun to lead toward no gov't involvement in marriage at all as a solution. But, like I said, I can't discuss the issue with a well informed opinion.

  • In reply to publiusforum:

    Perhaps you would like this "solution" to the "problem" ...

    The government will provide for "civil unions" available to both straight and gay couples. This union will carry certain rights, privileges and obligations just as they currently do. These would include tax benefits, health insurance benefits, etc.

    Religions would have "marriage" ceremonies. These would be done in accordance with the beliefs of each religion. So, Catholics could not be forced by the government to allow gay couples to have Catholic marriages sanctioned by the church. More liberal religious groups, like Reform Judaism could continue to sanction same-sex unions.

    The government would be required to recognize religious "marriages" as equivalent to the non-religious "civil unions" with all the same rights and obligations.

    So, instead of the difference between "marriage" and "civil union" being based on sexual orientation (which is not a choice) it would be based on religious preference (which is a choice).

    No stepping on anyone's religious belief, and no imposition of anyone's religious belief on anyone else. I recently discussed this with a Lutheran minister who is absolutely against gay marriage. He told me this was a good "solution" to the "problem."

    Any thoughts?

  • In reply to CrazyLiberal:

    I see nothing inherently wrong with that approach.

  • In reply to CrazyLiberal:

    I won't bother arguing about who is "demonizing" whom, but do you really not see the difference between attacking people because of what they say and attacking people because of who they are?

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