Misreading The Prop 8 Decision

The argument of the plaintiffs who brought suit against Propositon 8, "only marriage between a a man and a woman is valid or recognized in California," was based on the due process and equal protection clauses of the Fourteenth Amendment. In siding (decisively) (transcript here) with them, Judge Vaughn Walker in the United States District Court for the Northern District of California determined as a "conclusion of law"

each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.

Nevertheless, blogger and attorney Glenn Greenwald, who blogs persuasively on national security, is way off-base in panning New York Times columnist Ross Douthat as he criticizes the gay marriage decision. Douthat's piece contains several flaws, but Greenwald demonstrates a certain carelessness when he contends

Douthat is quite confused about what Judge Walker actually ruled. He did not decree that there are no legitimate moral, theological or spiritual grounds for viewing heterosexual marriage as superior.

Maybe. But denying that Judge Walker gave an enthusiastic boost to the notion that same-sex marriage is not inferior to opposite-sex marriage is disingenuous to the point of being silly.

In the "findings of fact," Judge Walker wrote:

48. Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.... Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex.

50. Same-sex couples receive the same tangible and intangible benefits from marriage that opppostie-sex couples receive.

It's just a guess, but a section entitled "whether the evidence shows that Proposition 8 enacted a private moral view without advancing a legitimate governmental interest" might put into question Greenwald's inference that this Court like other "Courts don't rule on moral, theological or spiritual questions." And so Judge Walker informs us

77. Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.

80. The campaign to Proposition 80 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.

The section "conclusions of law" included

*Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their aility to peform the rights and obligations of marriage under California law.

* Proponents' argument that tradition prefers opposite-sex couples to same-sex couples equates to the notion that opposite-sex relationships are simply better than same-sex relationships. Tradition alone cannot legimize this purported interest.

* The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal.

* The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.

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The last two excerpts most clearly demonstrate that Judge Walker set out, amongst other objectives, to "decree that there are no legitimate moral, theological or spiritual grounds for viewing heterosexual marriage as superior." Greenwald could have argued that the Court definitively substantiated that there is no reason to believe heterosexual marriage is superior to homosexual marriage. The validity of that argument would hinge on the evidence Walker presented. But to claim that "Judge Walker's ruling is exclusively about the principles of secular law -- the Constitution -- and the legitimate role of the State" is so wrong-headed as to be beneath the standards Glenn Greenwald normally sets for himself.

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