simple. In order to be able to legally discriminate against someone, in order to deny them a
fundamental right, the government has to prove it has a "compelling interest" in doing so.
This "interest" has to be important enough to override equal protection, free speech, or other
constitutionally protected rights. In the case of Proposition 8, proponents couldn't come up
with one "compelling" reason why two people of the same gender shouldn't be able to enter
into a legal contract called marriage. I told you so.
While opponents put dozens of witnesses on the stand to show how the law discriminates
and denies equal protection and due process guaranteed by the 14th Amendment, proponents
had few witnesses with which to make their case. Those who did testify, defended the law on
the basis of marriage being the traditional structure in which children are raised and this
structure is best served when it is a man and a woman. Marriage, according to them, is an
institution through which society transmits values and only a marriage between two opposite
sex partners can transmit the values we wish our children to learn. Judge Walker rejected this
argument and he was right.
Supporters of Proposition 8 believe one man and one woman are superior to same sex
couples. Something is "unnatural" when gay men or lesbians wish to cohabit. Judge Walker
said this belief is not a proper basis on which to legislate. At one time, it was thought a
marriage between a white person and a person of color was inferior and laws were
promulgated to prevent such marriages. In 1968, the Supreme Court finally ruled there was
no basis for such a belief except bigotry and racism and declared these laws violated the due
process and equal protection clauses of the U.S. Constitution.
There is no evidence to suggest same sex couples would be worse parents than two
straight parents. Yet, proponents argued that since marriage is the primary way society
educates its children, same sex marriages would fail that test. However, they were unable to
answer Judge Walker's questions as to why people who are infertile or never intend to have
children are allowed to get legally married.
What this whole debate is about is religion. The Mormon Church and the Roman Catholic
Church poured tens of thousands of dollars into the campaign to pass Proposition 8.
Evangelical Christian communities, and unfortunately, African-American churches also pushed
its passage. (It is ironic to see the prejudice in the African-American community against
homosexuality, necessitating support for a law eerily reminiscent of the miscegenation laws
of days past.) The Catholic Church considers homosexuality an intrinsic evil. The problem is
marriage is a civil matter, not a religious matter. Judge Walker points out religious leaders
can solemnize marriages, but have no authority to determine who can enter or leave a civil
marriage. He went on to say "...moral disapproval is an improper basis on which to deny rights
to gay men and women". Neither side disputes the fact marriage is a fundamental right.
Straight people have done little to uphold the sanctity of marriage. The states with the
highest divorce rates are all below the buckle of the Bible belt with Oklahoma leading the way.
The state with the lowest divorce rate is that bastion of liberal elites, Massachusetts. If we
want to really show concern for children, outlaw divorce. Divorce devastates children far more
than two gay parents ever could.
This issue is a classic which cuts right along demographic lines. People under forty
approve of same sex marriage by a large margin while those over forty oppose it. A recent poll
shows that if Proposition 8 were to be proposed this coming November, it would lose
Finally, proponents are outraged a judge has "thwarted" the will of the people. They
either failed civics class or don't understand the whole purpose of judicial review is to act as
a check on the legislative process. Neither legislatures nor popular initiatives can take away
constitutional protections to due process or equal protection without a "compelling" reason.
There is no "compelling" reason to prevent same sex marriage except prejudice and religious
bigotry and it is the function of the courts to ensure that doesn't happen.
This issue will get to a Supreme Court with six Catholics. I wish I had faith they will rule
on the law and leave their religion at home, but I am not confident they will. However, for
now I will live with the hope justice will prevail. What do you think? I welcome your
comments and rebuttals. Please send them to email@example.com