Gay Patriot Header Image

Yes, Judge Walker, Gay Marriage is Social Change

Posted by B. Daniel Blatt at 3:57 am - August 5, 2010.
Filed under: Blogging,Constitutional Issues,Gay Marriage

As I began reading Judge Walker’s opinion yesterday overturning Proposition 8, I had some indication I might like the opinion.  That thought cheered me for a moment as it would be a lot easier socially to support the decision than to oppose it.  But, the more I realized I could never support an opinion with sloppy jurisprudence and such a casual dismissal of sexual difference (even couching it in the trendy term of “gender”).

So casually did the judge address some very, serious issues that Dale Carpenter feels he practically invites repeal:

But he then concludes that because laws limiting marriage to opposite-sex couples are not rational, “the court need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review.” If that’s true, why address the issue at all? He may be hoping, in maximalist fashion, to lay some foundation for future courts to apply strict scrutiny to sexual-orientation discrimination. But at the same time, leaving the intellectual structure unfinished, he invites a higher court to undermine it.

Walker then rejects as irrational each of the reasons offered for Prop 8, including tradition, procreation, and the need to proceed cautiously and incrementally on matters involving important social change. The biggest difficulty with his argument on these matters, as I see it, is that he thinks of gay marriage as a technical change in the law about which there is no need to proceed cautiously. California has enough printers and paper to issue the additional marriage licenses, so what’s the big deal?

I had the same sense as I read the Judge’s “Conclusions of Law”, that he was acting as if sexual difference were merely incidental to marriage rather than one of its defining aspects.

Plain and simple, gay marriage represents a major social change.  Now, I happen to think that if gay couples understand and accept the obligations of marriage, this social change will be a good one, but it remains a social change.   And we shouldn’t shy away from seeing it as such.  Nor should courts reduce that social change to a minor, technical adjustment.

Anyway, read Dale’s piece.  It’s smart and well-written and you’ll better understand why he sees the decision as a Pyrrhic victory for same-sex marriage.

I believe I owe Glenn Reynolds a hat tip on this.  You see, I had intended to check Volokh to see what Dale had written about the decision, valuing his jurisprudential insights, but found it linked on Instapundit before I got around to checking Volokh (where Dale posts), I believe I’m honor bound to tip my hat to Glenn.  (Isn’t that the rule for hat tips?  That you acknowledge the linker even if he links a blog you had intended to check, but had not yet checked.)  And anyway, if it weren’t for Instapundit, I might never have encountered Volokh.

But, then, I knew Dale long before I discovered Glenn. . .  and even before I had I had hear of blogging . . . .

UPDATE:  I have now had a bit of time to read various bloggers’ opinions on Judge Walker’s opinion and have been finding a lot of good stuff at Volokh (keep scrolling if you have time) particularly Orin Kerr’s piece where he addresses the judge’s pooh-poohing the “proponents’ purported interests in proceeding with caution when implementing social change“:

Whatever your views of same-sex marriage — or Judge Walker’s decision as a whole — I think this particular part of the analysis is pretty weak. First, the idea that same-sex marriage is not a significant social change strikes me as plainly incorrect. This is one of the more significant questions of social policy of our time: Whether you think it’s the greatest advance for civil rights in America or the end of the world, it seems pretty clear that it’s a big deal.

Read the whole thing.

Share

19 Comments

  1. I think Ben Shapiro was saying the same to Rusty Humphries last night, as I recall.

    Comment by ThatGayConservative — August 5, 2010 @ 9:04 am - August 5, 2010

  2. Where is it written that social change has to be implemented slowly and according to some schedule decided by its opponents? It’s not like we’re legalizing prostitution or decriminalizing marijuana here – an existing social practice is simply ending its arbitrary exclusion of gay people. More people are going to be able to get married…. what are the hypothetical disastrous consequences of that?

    The comparison to black/white marriage has been made before but it’s important here. Should we have decided that issue according to what racists decided was an acceptable pace of social change, or should we have decided that issue based on the glaring injustice of arbitrary exclusion? I simply don’t have time to wait around for a group of people holding irrational beliefs to come around on their own. The best way is to push gay marriage through and let the hysterics see that the world doesn’t end.

    Comment by Levi — August 5, 2010 @ 9:08 am - August 5, 2010

  3. Where is it written that social change has to be implemented slowly and according to some schedule decided by its opponents?

    Where is it written that social change has to be implemented at all?

    Comment by DoDoGuRu — August 5, 2010 @ 9:14 am - August 5, 2010

  4. The issue has always been one of definition and who gets to define what for whom and how. In our federated Constitutional Republic, rights were considered either “inalienable” – due to fellow human beings simply because they were human beings (life, liberty and happiness)…. or civil: rules of behavior appropriated via a legal process of elections, votes, consensus.

    Given human diversity, the founders wisely allowed the various states to develop different codes and laws within the overall framework of the Constitution. They didn’t impose a one-size-fits all federal monism.

    When women desired the right to vote did they win a court case and impose this on the Republic? No. They convinced enough men to vote them the right via a Constitutional amendment.

    How did Blacks achieve recognition of equality? Via a court case that forced the majority to behave? Or by convincing enough whites of the justice of their cause such that both by civil war and subsequent amendments, their cause became the majority’s cause?

    How did women (and their men) get the “right” to abortion? Via the court. And while they have that legal right, has it been a force of social unity since 1973 or the lightning rod dividing the nation?

    In the case of re-defining “marriage”, the issue comes down to who has the authority to re-define that millennial old term which pre-dates the Republic. Should the minority of Gays be able to re-define it, then what ‘rational’ reason could anyone muster to keep marriage from further re-definition by, say, the old Mormons or by Muslims wishing a dozen wives, or by those who wish to “marry” minors?

    Irrational? Red herrings? No. Not at all. Old time polygamists and those who believe in child marriage believe just as strongly that their definition is valid. But more to the point, does the desire of any individual or minority of citizens trump everyone elses’ desires and world-view?

    Why stop with the term “marriage”? We’ve already seen that “corporations” can be considered “persons”. Many are calling for animals to be grants “rights” as “persons” while calling for newborn human infants to be de-personalized.

    What about re-defining or expanding the definition of the term “adult” for purposes of legal sexual relations? After all, 8 year old girls are regularly treated as adults for purposes of abortion without parental knowledge, why not treat ALL 8 year old girls as adults for purposes of marriage? But of course, if they can be re-defined as adults, could they drive cars? Vote? Purchase firearms? If not, why not? To accept their adult status for sex but nothing else would be…..”irrational”.

    Then there’s the definition of “Prostitution” or “profit”, the definition for “public” and “private”. Again, if traditional usage, legal precedent, heretofore universally non-controversial acceptance, and current overt majoritarian democratic voting/amendments mean nothing to sitting judges, then not only can any minority foist it’s desires on the majority, but given the very power of definition to judges and not “the people” we have left the Federated Constitutional Republic model and entered the Judicial Oligarchic model. And that doesn’t end well for anyone.

    The Gay minority already has well founded fear of a hostile majority surrounding them do they not? What allays fears and lessens anger more? Winning via public persuasion and incremental change, or winning via Judicial fiat and Federally imposed social changes? Have we learned nothing from the Civil Rights and Abortion conflicts?

    Comment by John — August 5, 2010 @ 9:20 am - August 5, 2010

  5. Where is it written that social change has to be implemented at all?

    Well, when you have a multi-cultural country of 300 million with a history such as our own, it becomes necessary from time to time, wouldn’t you agree?

    Or, should we have been patient and let the free market sort out racism?

    Comment by Levi — August 5, 2010 @ 9:26 am - August 5, 2010

  6. Daniel, I know I said this before but here it goes again. Even though I don’t agree with you on some serious issues, I appreciate your willingness to dig past the liberal talking point echo-chamber.

    Comment by Randy — August 5, 2010 @ 9:40 am - August 5, 2010

  7. This is not some liberal vs conservative issue. I live in Maine, a very liberals state. Our legislature passed a law allowing same gender marriage. The people overturned it. Big voter turnout. It was close but clearly liberals have issues with same gender marriage. I think the state by state patchwork is waste of time and money. What good is being able to be married in NH and not being married in Maine? No federal benefits either. This needs to be dealt with on the federal level.

    Comment by TnnsNE1 — August 5, 2010 @ 9:59 am - August 5, 2010

  8. #2:

    Dear 7 Million Voters of the State of California,

    Where is it written that social change has to be implemented slowly and according to some schedule decided by its opponents? It’s not like we’re legalizing prostitution or decriminalizing marijuana here – an existing social practice is simply ending its arbitrary exclusion of gay people. More people are going to be able to get married…. what are the hypothetical disastrous consequences of that?

    The comparison to black/white marriage has been made before but it’s important here. Should we have decided that issue according to what racists decided was an acceptable pace of social change, or should we have decided that issue based on the glaring injustice of arbitrary exclusion? I simply don’t have time to wait around for a group of people holding irrational beliefs to come around on their own. The best way is to push gay marriage through and let the hysterics see that the world doesn’t end.

    Sincerely,
    Judge Walker

    Comment by Sean A — August 5, 2010 @ 10:12 am - August 5, 2010

  9. The decision seems to make gay marriage legal throughout the country. That’s a big change. Why does the decision claim minimal impact when the impact is huge?

    The legal and legislative schemes will change everywhere. There is no gradual phase in. The culture shock and impact on society will not be minimal.

    Comment by anon32353 — August 5, 2010 @ 10:44 am - August 5, 2010

  10. John, I approved your comment (in the interest of giving our critics a say when they express their points civilly as you have) even though you did not address any of the points I made — and are just plain wrong on the facts of the Civil Rights Movement.

    Brown v. Board of Education was necessary to overturn a very bad Supreme Court decision: Plessy v. Ferguson. Almost all of the remaining landmark acts overturning the decades of discrimination after the Civil War were acts of Congress — sprinkled in with a few Executive Orders (e.g., Truman’s decision desegregating the military).

    Have you made a sample post collecting left-wing talking points and are posting it to blogs all and sundry?

    Comment by B. Daniel Blatt — August 5, 2010 @ 10:50 am - August 5, 2010

  11. Well thanks Daniel.

    My post was my opinion as to the unspoken assumption undergirding the entire controversy. To wit: that words of universal impact can be re-defined by courts at the bequest of minorities who disagree with majorities’ viewpoints. If Marriage can be re-defined this way, why not “adult” or “citizen” or further tinkering with “marriage” to include polygamy, lower ages of consent, and admitting to temporary marriages? It would appear that once the precedent of who gets to re-define words and how is established, the sky’s the limit.

    But lets move on to my claims about the civil rights movement. You assert that I’m wrong. OK. How so? Did the minority of African freemen in the North win a court case to force the entire United States to accept their equality in 1810? Or did a majority of white citizens ally with them for the cause of equality over a century long period including civil war, reconstruction amendments, legal struggles with integration, Jim Crow opposition and finally Brown vs. B of E? Did it end there or continue to this day with continued social contention and stress?

    My point was that successful ‘reforms’ need a majority’s buy in and support. If minorities’ desires regularly trump majorities’ beliefs expressed in democratic process and state amendments, the end result will not be social harmony and union but further disintegration and anger.

    Comment by John — August 5, 2010 @ 11:01 am - August 5, 2010

  12. Dan,

    I’m going to disagree with you.

    Brown overturned Plessy, yes. But Brown was an escalation of Plessy. Plessy demanded ‘seperate but equal’ Taken at face value, it meant they had to be equal. The states weren’t following through on the obligations to their citizens. YMMV.

    Comment by The_Livewire — August 5, 2010 @ 11:04 am - August 5, 2010

  13. The decision seems to make gay marriage legal throughout the country. That’s a big change. Why does the decision claim minimal impact when the impact is huge?

    The legal and legislative schemes will change everywhere. There is no gradual phase in. The culture shock and impact on society will not be minimal.

    What’s going to happen? Like, in the real world, what are you so worried about? Is there going to be rioting? Is there going to be gay sex in the streets? What the hell are you talking about?

    As for the idea that we need to protect people from culture shock….. lol. That would have fit right in with all those arguments for segregation back in the day!

    Comment by Levi — August 5, 2010 @ 11:10 am - August 5, 2010

  14. The idea that certain issues are more or less contentious because of how they are decided by the government is completely. By this token, Obama’s stimulus bill and healthcare bills should not create so much angst among conservatives – they were passed by a legislature after all, and not decided by a supreme court decision. Democrats got more people to vote for them, and they got enough votes in Congress to pass a healthcare bill, so there should be no controversy right?

    And yet, Republicans scream and shriek about healthcare reform just as much as they scream and shriek about abortion. Do you people even try to be consistent?

    Comment by Levi — August 5, 2010 @ 11:16 am - August 5, 2010

  15. John, I’d study the history of marriage if I were you before tossing out left-wing talking points. Nearly every change (if not every) you reference was enacted through legislative deliberation not judicial fiat.

    And if you familiarize yourself with the history of blacks in America, you’ll find their focus wasn’t on “equality,” but freedom (or liberty).

    Check the record and get back to me. And next time, you feel like attaching your comment to one of my posts, why not address the actual content of the post to which you attach your comment.

    Comment by B. Daniel Blatt — August 5, 2010 @ 11:35 am - August 5, 2010

  16. Democrats got more people to vote for them, and they got enough votes in Congress to pass a healthcare bill, so there should be no controversy right?

    That’s hilarious, Levi — did you already forget what you stated elsewhere this morning?

    I just understand what country you think you’re living in. I don’t see it written anywhere in any of the founding documents that majority rules. In fact, our government is more concerned with protecting the rights of the minority from the majority. The judicial branch can’t usurp power from the people, because the power that you think the people have (specifically, to order the government to deny marriage licenses based on sexual orientation) doesn’t exist. Deciding policy in this country isn’t a numbers game – how do you not understand this?

    In short, you argue “majority rules” in one place, and you oppose “majority rules” as unconstitutional in another.

    Do you even try to be consistent?

    Now run away, coward boy, instead of answering the question. We all know that failures like yourself can’t make an intelligent and reasonable argument. Your failure to respond just demonstrates that you have no coherent argument.

    Comment by North Dallas Thirty — August 5, 2010 @ 12:54 pm - August 5, 2010

  17. Is “gender” trendy? I see it as a necessary adaptation of the language to current understandings of sexuality.

    Traditionally, “sex” was the quality of being male or female. “Gender” was purely a linguistic term.

    That left sexual intercourse, i.e., penetration of the genetalia of one sex by the genetalia of the other (and therefore necessarily heterosexual), as the only sexual activitiy described in the language. Oral, manual or anal sex, whether heterosexual or homosexual, were, in that sense, literally “unspeakable acts”.

    Now that those other types of sexual activity, while still considered immoral by many, have received a much higher degree of acceptance in society, it’s appropriate that the language be expanded to name them. Phrases such as “sexual activity” and “having sex” have moved the word “sex” beyond its original meaning. And that’s necessary in order to bring same-gender sexual activity out of the linguistic closet.

    Meanwhile, we still need to describe the quality of being male or female. (Yes, I realize it’s not always that simple.) “Gender” seems to work just fine in that role.

    Comment by Richard — August 5, 2010 @ 2:09 pm - August 5, 2010

  18. If a same-sex couple can sue to redefine ‘Marriage’, can i sue to redefine the term ‘African American’?

    I’d like to get in on that sweet deal called ‘Affirmative Action’!

    Whatever deal was struck, it was foolish to call it a marriage. A ‘Civil Union’ could give every advantage of marriage without causing offense.
    .

    Comment by gastorgrab — August 6, 2010 @ 1:17 am - August 6, 2010

  19. Brown overturned Plessy, yes. But Brown was an escalation of Plessy. Plessy demanded ’seperate but equal’ Taken at face value, it meant they had to be equal. The states weren’t following through on the obligations to their citizens. YMMV.

    I wonder if the original decision in Plessy was decided out of fear that a backlash from a decision overturning segregation would result in a segregation amendment that would permit states to enact segregation, or even require states to enforce segregation as far as it is practical.

    Plessy was clearly in contradiction with the original public understanding of the 14th Amendment. The justices should have ruled the other way, even if it meant that a segregation amendment would be ratified in the backlash. Plessy is one example of the Supreme Court de facto amending the Constitution.

    Where is it written that social change has to be implemented slowly and according to some schedule decided by its opponents? It’s not like we’re legalizing prostitution or decriminalizing marijuana here – an existing social practice is simply ending its arbitrary exclusion of gay people. More people are going to be able to get married…. what are the hypothetical disastrous consequences of that?

    The disastrous consequences is from the method of interpretation.

    It would be one matter, if, in wake of a same-sex marriage amendment or an Equal Rights Amendment , a judge struck down a state ban on same-sex marriage. (Daniel points out that Judge Walker would have had a stronger case for such a ruling if the Equal Rights Amendment had been ratified. )

    Not only has Judge Walker interpreted the 14th Amendment in a manner inconsistent with its original public understanding, he interpreted it in a manner that the Supreme Court had previously rejected ( Baker v. Nelson ) And he did not even address Baker . It would be like a federal judge striking down polygamy bans against a 14th Amendment challenge without even mentioning Reynolds v. United States or Davis v. Beason , or a judge upholding an interracial marriage ban without even mentioning Loving v. Virginia

    A reinterpretation of the 14th Amendment constitutes a de facto amendment to the U.S. Constitution, and that is ultimately a greater threat to the constitutional protections that we have.

    Comment by Michael Ejercito — August 6, 2010 @ 12:35 pm - August 6, 2010

RSS feed for comments on this post.

Sorry, the comment form is closed at this time.