Judge Walker’s Overturning of the California Gay Marriage Ban: Unconstitutional Enlightened Despotism

Last week gay-marriage advocates won the latest battle in the culture wars when California Chief Justice Vaughn Walker declared California’s gay-marriage ban unconstitutional.  Among his findings of facts, Walker lists a number of truths in favor of gay marriage that rational people should find unassailable:

1. Elimination of gender restrictions in marriage has not deprived the institution of its vitality.

2. Government channels benefits, rights, and responsibilities through marital status.

3. Marriage creates economic support obligations between consenting adults and their dependents.

4. Marriage promotes physical and psychological health.

5. Marriage promotes financial stability.

6. Marriage promotes household efficiency through specialization.

7. Same-sex love and intimacy is well-documented in history.

8. Sexual orientation is fundamental to identity.

9. Individuals do not choose their sexual orientation.

10.  Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.

11.  Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.

This is only a partial list (For the full decision see here).  Judge Walker’s arguments on behalf of gay marriage are a model of reason.  That said, his decision is nevertheless an abomination for those who love Constitutional Democracy.  Finding the California gay-marriage ban unconstitutional is itself unconstitutional.  Walker has taken upon himself to change the law.  He is a despot – perhaps an enlightened despot (Can a despot ever really be enlightened?) – but a despot nonetheless.

As Walker points out in his finding, when California entered the union in 1850,  “Marriage was understood to require a husband and a wife.”  California followed the lead of a Judeo-Christian tradition that had existed for more than a thousand years.

Joseph Smith, Jr., the founder of Mormonism, tried to change the accepted definition of marriage in the 1830s to include polygamy.  For this and other reasons, Smith was assassinated.  The Mormons fled to Utah to practice their faith, including polygamy, which caused the US Army to invade the territory in 1857.  Historically, the definition of marriage in the United States as consisting of between a man and a woman is clear and unyielding.

True, as Judge Walker points out, various states at one time or another had laws on the books forbidding inter-racial marriage.  These laws were eventually overturned, but they were overturned based on decisions closely tied to constitutional intent or legislation.  Specifically, the 14th Amendment to the US Constitution was designed to give former African-American slaves the rights of citizens.   To deny a black man the right to marry a white woman, or a black woman the right to marry a white man, was in effect a denial of full citizenship rights.  The issue was put to rest with the passage of the Civil Rights Act of 1964, which prohibited discrimination on the basis of race, color, religion, sex, or national origin.

Note that language protecting one’s rights based on “sexual orientation” is conspicuously absent from the Civil Rights Act.  In the name of equal justice, such language should be added, but until it is, or until legislative bodies or citizens in referendum specifically act to change the traditional definition of marriage, then gay marriage must remain unlawful.  For it to be otherwise, we all must suffer an unacceptable loss of freedom and democracy by permitting judges to usurp legislative authority (Here is a similar view written by a gay advocate of gay marriage ).

Walker’s judicial ruling was not reasonably based on any provision found in the US Constitution or the California Constitution.  The authors of these documents would have denied that they embraced a civil right to gay marriage.  As Walker honestly acknowledges, California law is unambiguous on the definition of marriage.  The California Civil Code states that “Marriage is a personal relation arising out of a civil contract between a man and woman.”  This definition, and a specific ban on gay marriage, were endorsed by a majority of California voters in the referendum, Proposition 8. Walker’s ruling is nothing but an attempt to circumvent democracy based on his own personal interpretation of the facts.  At least he had the decency to stay his own opinion.

In democracies all law must flow from the people, including civil rights and individual liberties.  In democracies, the people have the right to be wrong.  Gay people have long endured the tyranny of the majority.   In recent decades that tyranny has been coming to end as evidenced by a revolution in social attitudes and a growing number of domestic partnership and gay-marriage laws legally enacted through state legislatures.   Gay people probably understand better than the rest of us how precious freedom is.  They, along with the rest of us, should consider that an enlightened despot who can grant us freedom today can just as easily take it away tomorrow, and take it away forever.