Wednesday, August 11, 2010


Regarding Judge Vaughn Walker's ruling in Perry vrs Schwarzenegger, its hard for me to believe that you, of all people, would be offering this kind of opinion. You claim to be a champion of individual rights. When did you change your mind?

The principle you are using to argue against the ruling is precisely the same principle which Prop 8 sought to undermine. To wit: does the government have the right to tell private citizens who they can marry? Steve, what you are saying is that the State of California has the right to define what constitutes marriage. Coming from a man who is constantly railing against government imposed social engineering, this is a breathtaking contradiction.

Before we go any further, lets get Judge Walker's constitutional argument out of the way. Section 1 of the 14th amendment clearly states:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Simply put, Judge Walker ruled that California was depriving same sex couples of equal protection.

Suppose, for example, the State of California passed a law which made it illegal for midgets to drink beer. Would the State have the constitutional right to enforce this law? Obviously not. This would be denying midgets the same treatment under law as any other Citizen. By extension, if couples of the opposite sex have the right to enter into the legally protected institution of marriage, wouldn't denying couples of the same sex this right be denying them equal protection? Judge Walker thought so. I do too. And so will the Supreme Court in a few years - despite its right leaning composition.

Now what constitutes "legal protection"? The first most obvious example of course is taxation. Married couples who file jointly are entitled to a lower rate of tax than they would be if they filed separately as single persons. I'm going to also point to just a few other legally protected rights which married couples enjoy: visitation rights at hospitals, rights of survivorship in matters of marital property, divorce law (including custodial rights) - not to mention legally condoned discounts on things like health insurance and club memberships. I'm sure I'm leaving out a great deal more than I'm including.

Now is it "right" or "proper" to deny same sex couples the same marital rights as opposite sex couples? I agree with you that this is a moot point - and entirely irrelevant to the constitutional issue. However the State of California tried to run this race off the track and offered in a rather lame defense of its legal standing the evidence that same sex marriages are harmful to society in a number of ways. Although the right wing media are castigating him for ruling on this evidence, it was not Judge Walker's idea to consider it in the first place. If you want, you can go to Judge Walker's ruling and read, under "Findings of Fact" how the Prop 8 defendants failed, in court, to establish any factual basis for promoting the the passage of this legislation. By the way, I've read through some of the testimony on this evidence and agree with Judge Walker that the testimony of behalf of the defendants is not only pathetic - but in some cases actually buttresses plaintiff's case.

Steve, I think what you are forgetting here in your zeal to censure the Federal Government is that State Governments have the same dangerous tendency to interfere in our private lives as the Federal Government does. As a mental exercise, ask yourself if the 14th amendment was passed as a way of increasing either federal power or the power of individual citizens. If your answer is the former, all you are really saying is that the Federal Government, acting on behalf of the constitution, has no standing to enforce it. That, frankly, is crazy.

If you want to move on to what I honestly believe is your real objection to the ruling, I'd be perfectly happy to do so.



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