Gender-ambivalent marriage may be the law of the land in 9 states and the District of Columbia, but that doesn’t mean the other 41 states have to like it. Or do they? That’s up to the Supreme Court—unfortunately—which will decide whether Proposition 8, the traditional marriage law in California, is constitutional. The case is called Hollingsworth v. Perry, but 3 years ago it was known as Perry v. Schwarzenegger. I was on top of federal judge Vaughn Walker’s ruling the day it came out. (He ruled Proposition 8 unconstitutional.) This critique of Judge Walker’s ruling should serve as a primer for those wanting to understand the legal defense of traditional marriage laws.
Judge Walker gave 2 legal arguments for overturning the law.
Argument #1: The amendment violates the equal protection clause of the Constitution.
For a law to be invalidated by the equal protection clause, one of the following 3 conditions must be met:
1. the party claiming injury is a “suspect class,” and the law does not stand up to strict scrutiny;
2. the party claiming injury is a “quasi-suspect” class, and the law does not stand up to intermediate scrutiny; or
3. the party claiming injury is a non-suspect class, but the law is not justified by a rational basis.
A suspect class is a group of people who display a readily recognizable, obvious, immutable, or distinguishing characteristic that defines the group as a discrete and insular minority. Think blacks.
In 2010, only one court had ruled that homosexuals are a suspect class: the California Supreme Court, in 2008.
So what did Judge Walker say which standard of review applies to California’s traditional marriage law? “The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation.” (Also “the Equal Protection Clause renders Proposition 8 unconstitutional under any standard of Review.”)
This is Judge Walker’s first mistake. California’s marriage law creates no classification based on sexual orientation. Proposition 8 states clearly: “Only marriage between a man and a woman is valid or recognized in California.” The amendment does not prevent gay women from marrying men or gay men from marrying women.
What led Judge Walker to review the law’s supposed discrimination based on sexual orientation? He analyzed the political campaign to pass Proposition 8. “The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. The campaign relied heavily on negative stereotypes about gays and lesbians and focused on protecting children from inchoate threats vaguely associated with gays and lesbians.”
This was a first, and it is not to Judge Walker’s credit. Never has the political campaign to pass a law been used in a court to determine the constitutionality of that law.
At any rate, Judge Walker asserted that homosexuals are a suspect class, and that the law does not survive rational basis review. Both assertions must be addressed. Let’s take the suspect class argument first.
Certain human traits are immutable. Gender is immutable. National origin is immutable. Skin color is immutable. Sexuality, on the other hand, is behavioral and fluid. The activities of one night to the next, one person to the next, are at the mercy of a million unaccountable factors. Sexuality is mutable and not fixed.
Judge Walker wrote: “An individual’s sexual orientation can be expressed through self-identification, behavior, or attraction. The vast majority of people are consistent in self-identification, behavior, and attraction throughout their adult lives.”
Self-identification is arbitrary and contradicts sexual behavior. If a man claims he is heterosexual but is saving sex until after marriage, does he qualify as a heterosexual? His behavior is more consistent with a homosexual virgin than a sexually active hetero. If a woman claims she is heterosexual, but has had fleeting experiences with other women, is she not in fact bisexual? The narrow sexual categories of self-identification break down into a history and a multitude of feelings, fetishes, and idiosyncrasies for every unique individual.
Granted the majority of homosexuals are “consistent in their self-identification, behavior, and attraction,” a “discrete and insular minority” they do not make. Judge Walker wrote next: “Sexual orientation is commonly discussed as a characteristic of the individual. Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. Proponents’ assertion that sexual orientation cannot be defined is contrary to the weight of the evidence.”
Wrong again. There is no distinctness or insularity to a particular group if you can leave or join that group based on sexual behavior or arbitrary self-identification.
Overlooking these errors, on the basis of strict scrutiny alone, Judge Walker could at this point declare Proposition 8 unconstitutional. But remember how he got here: He prejudiced his interpretation of the law by inexorably linking it to the political campaign to pass it, and he declared sexuality and thus sexual orientation an immutable trait, which it is not.
Let’s move on to rational basis review. Rational basis review is a litmus test to determine whether a law rationally relates to a legitimate state interest. The proponents of Proposition 8 put forward 6 rationales.
For the sake of brevity, let’s analyze the best one and why Judge Walker rejected it: “reserving marriage as a union between a man and a woman and excluding any other relationship from marriage.” Be forewarned: This is where Judge Walker went off the deep end:
The evidence shows that the tradition of restricting an individual’s choice of spouse based on gender does not rationally further a state interest despite its “ancient lineage.” Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. California has eliminated all legally mandated gender roles except the requirement that a marriage consist of one man and one woman. Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.
See how Judge Walker eschewed the merit of tradition and denied men and women “fulfill different roles in civic life”? This blows my mind, as it should yours. He enshrined in case law the irrelevance of social differences between men and women. Not surprisingly, he provided zero evidence to support this claim, because there is none. Welcome to genderless America.
Argument #2: The amendment violates the due process clause of the Constitution.
Judge Walker wrote: “Due process protects individuals against arbitrary governmental intrusion into life, liberty or property. When legislation burdens the exercise of a right deemed to be fundamental, the government must show that the intrusion withstands strict scrutiny.”
By his own admission, then, he must deem same-sex marriage a fundamental right. “To determine whether a right is fundamental under the Due Process Clause, the court inquires into whether the right is rooted ‘in our Nation’s history, legal traditions, and practices.’” Indeed marriage—traditional marriage, not same-sex marriage—is rooted in our nation’s history, legal traditions, and practices.
Judge Walker continued: “The freedom to marry is recognized as a fundamental right protected by the Due Process Clause.” He pointed to several precedents, including Turner v. Safley, Zablocki v. Redhail, Cleveland Board of Education v. LaFleur, Loving v. Virginia, and Griswold v. Connecticut, to support his finding that marriage is a fundamental right.
But none of those cases he cited as precedents addressed same-sex marriage. All of them addressed various obstacles to opposite-sex marriage. For example, Turner overturned a law that forbade a male inmate in one prison from marrying a female inmate in another prison. This is the essential context in which “the decision to marry is a fundamental right” in the Turner decision should be read, not as precedent for deeming same-sex marriage a fundamental right.
Judge Walker cited Loving, which overturned Virginia’s anti-miscegenation laws, again as precedent for overturning marriage bans which discriminate against a suspect class. But this precedent doesn’t apply, as homosexuals are not a suspect class. Loving overturned anti-miscegenation laws because blacks are a real suspect class, a discrete and insular minority with a readily recognizable, immutable characteristic (i.e., the color of their skin). The equivalence of skin pigment and gender is a tired and discredited argument. Whereas men and women have real differences, the differences between blacks and whites are only skin deep.
There you have it. Let’s summarize Judge Vaughn Walker’s mistakes in overturning Proposition 8:
1. He interpreted the law as discriminatory on the basis of sexual orientation, when in fact the law discriminates on the basis of sex.
2. He declared sexual orientation an immutable trait, equivalent to skin color, national origin, and gender, when in fact sexuality is behavioral and fluid.
3. He asserted that, and provided zero evidence in support of, “men and women [do not] fulfill different roles in civic life.”
4. He inaccurately applied precedent to deem same-sex marriage a fundamental right “rooted ‘in our Nation’s history, legal traditions, and practices.’”
If we’re lucky, 5 justices on the Supreme Court will recognize one or more of these errors and rule in favor of California’s traditional marriage law. If they do, it will be a victory for states who have resisted redefining marriage. If they don’t, it will in effect force those states to change.
A version of this article appears at the Red Pill Report.