Federal Judge Overturns California’s Proposition 8
No surprise here. Neither is Judge Vaughn Walker’s reasoning that gay marriage is a constitutional right per the 14th Amendment. “Reasoning?”
As the GayPatriot blog reports, and I have no reason to question his analysis, since he’s “the most reliably conservative gay blog on the Internet” and I’ve always found him to be so:
I have now read or skimmed the entire opinion. I find that the judge makes some good arguments for gay marriage, but doesn’t succeed in relating them to the constitution. His legal analysis is sloppy at best and dismisses the sex-difference argument for traditional marriage by flippantly referring to what he calls “discredited notions of gender” as if the assumptions about a supposed social construction of gender had been proven true when, in fact, all serious psychological, sociological studies have shown the opposite. Not to mention studies of the human brain.
He fails to cite a provision of the federal constitution which prevents states from making distinctions based on sex difference, primarily because there isn’t one.
Either you believe two men or two women can make a “marriage,” or you believe it takes one of each gender. No big deal. It has nothing to do with the US Constitution or even its 14th Amendment. It’s a matter of belief.
BTW—and I’ve never heard it mentioned in all of this—the 14th Amendment itself makes a distinction on the “notion of gender,” see Section 2 of the 14th:
But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime…
[Bold face mine. I didn't even know there was an "Article 2" until I looked up the Fourteenth's text. What is this?]
“Discredited notions of gender?” Well, perhaps by modern social science, but not even by the 14th Amendment to the Constitution. “Discredited” is in Judge Walker’s head.
So “GayPatriot,” B. Daniel Blatt, writes with his customary accuracy:
Too bad he fails to cite any (of the many) serious studies on sex-difference.
If the “Living Constitution” and judges quoting social science are to become our rulers—throwing overboard the words of the Constitution and the 14th amendment itself, as well as the will of the people via California’s initiative process, let’s just be honest about it, OK?
And we ought to be honest about all that “social science” while we’re at it, wouldn’t you think? Not just pick the data we like?
These are “GayPatriot’s” two major arguments, one constitutional and the other empirical—each strong enough to stand alone, and that’s not even getting anywhere near the “morality” thing. Would that he’d have argued the Prop 8 case.
We call ourselves a “constitutional democracy,” or a “constitutional republic.” At least according to Judge Walker’s decision, we are none of the above. We are not self-governing citizens, we are the ruled.
Again, the eloquent Mr. Blatt:
I find that the judge makes some good arguments for gay marriage, but doesn’t succeed in relating them to the constitution. His legal analysis is sloppy at best and dismisses the sex-difference argument for traditional marriage by flippantly referring to what he calls “discredited notions of gender.”
…
Antiquated and discredited notions of gender? Discredited by whom? Sociologists writing in the 1970s, inventing a social construct out of thin air?
I meself have no problem with endorsing Mr. Blatt here as a “patriot,” gay or otherwise. Seems like an honest man. Perhaps he does hold that two persons of the same gender can indeed make a “marriage.” No matter: what we do know for certain is that Mr. Blatt respects the democratic process, republicanism, and the Constitution, and that makes him a patriot.
I reckon he makes many folks unhappy with this, gay and conservative, often mutually exclusive categories. Well done, sir.
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As for the actual “trial” before Judge Walker, by all accounts, counsel for Prop. 8 was strictly minor-league. Against Prop. 8 were legal superstars Ted Olsen and David Boies, the combatants in Bush v. Gore [2000], now both on the same legal dream team.
Heh heh. What a mismatch. Let’s get real here—nobody beats Spencer Tracy, not even Frederic March. Look at their faces. Who’s right and who’s wrong?
