Wednesday, August 18, 2010


Federal Judge Vaughn Walker has ruled Proposition 8 unconstitutional. The reason is

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


  1. Welcome back Bernie, I hope you travels went well and you got the hell out of Texas.
    Thanks for another well written blog post
    Take Care Chris

  2. Welcome back to California. We miss hearing you on KGO. One does not get over a 30 yr listening experience suddenly silenced that easily. Geo and Linda

  3. Thanks for posting on this very important topic! Carole, a senior citizen for marriage equality!

  4. I find it funny that when the issue goes before a court the ruleing is always for same sex unions. When it goes before the people for a vote the backers know that they can always depend on the predudice of people to vote it down.

    I am also a long time listener Bernie I guess 20 or so years. Back to when you were doing the 7 to 10 slot. As a truck driver I loved it when you went to the 10 to 1 am slot because I could hear more of you.

    I hope to hear your voice again soon.

    Take care Bernie


    Las Vegas NV