Married To The Core

Judge Vaughn R. Walker certainly made some news yesterday with his opinion declaring California's Proposition 8, which bans same sex marriage, unconstitutional. (I've heard some conservatives say Prop 8 doesn't ban anything, it just promotes traditional marriage. Yes, to the the exclusion of all else.) Previous judges have supported SSM, or overturned bans, based on state law, but that avenue wasn't open to Judge Walker, since Prop 8 rewrote the California Constitution.

I only skimmed over the decision but it did often feel more a brief for one side than a legal opinion firmly established in precedent. Perhaps that's because this is a fairly novel question.

And it's a question likely to be solved by the Supreme Court. I don't know which way they'll go, but I wonder if this is the best strategy for those who support SSM. For one things, there's a good chance they'll lose. For another, the tide of public opinion seems to be going their way. Is it better they short circuit the democratic process if it's going to get them to the result they desire?

Judge Walker argues a ban of same sex marriage doesn't pass the rational basis test (which is not suppoed to be tough to pass). At The Volokh Conspiracy, Orin Kerr quotes an essential passage of the ruling:

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States. Perry and Stier seek to be spouses;they seek the mutual obligation and honor that attend marriage, Zarrillo and Katami seek recognition from the state that their union is “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Griswold, 381 US at 486. Plaintiffs’ unions encompass the historical purpose and form of marriage. Only the plaintiffs’ genders relative to one another prevent California from giving their relationships due recognition.

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.

I don't have to guess that opponents will declare the Judge strongly mistaken, and that one man/one woman has always been at the core of what constitutes marriage. I guess now that question will be decided by a majority of the Supreme Court.

PS One news report described Judge Walker as a "Republican nominated by Ronald Regan." I'm not sure why it's necessary to go into his life, but if you do, it seems to be considerably more relevant that he's openly gay and generally libertarian.