ncclaguna.org

Much has been written about Judge Walker’s decision to overturn Proposition 8, the California Constitutional Amendment declaring marriage to be between one man and one woman. Although the California Supreme Court declined to invalidate Proposition 8, Judge Walker ruled that Proposition 8 violates the equal protection and due process clauses of the Fourteenth Amendment of the U.S. Constitution. I would invite anyone who wants to understand the facts and the decision to read the actual ruling. Simply enter Prop-8-Ruling-Final.pdf in your search engine or click here.  Or read more on our own website by clicking here.

Often legal battles of this magnitude are like the San Diego Chargers playing the Indianapolis Colts in NFL football. The teams are so evenly matched the outcome could go either way. Here, the Prop 8 ruling reads like the Chargers playing Laguna Beach High. Defenders of Prop 8 called only two witnesses, neither of which had the expertise in their area of testimony to survive a basic competency test. Yet, when you read the newspapers, it sounds like the judge simply ignored the evidence given by Prop 8 witnesses. What evidence? Should the judge have accepted the “evidence” that marriage is first and foremost about procreation and since gays and lesbians cannot procreate they should not be allowed to marry? The State of California has never had a procreation requirement for marriage and the U.S. Supreme Court has ruled that marriage cannot be reduced to an institution about sexual intercourse. Or should the judge have ignored the admission by both the defense’s witnesses and attorneys that they have no idea how gay marriage posses a danger to the state or harms heterosexual marriage in any way? Just what trial evidence is the judge supposed to have overlooked or ignored? What should the court have considered but did not?

The most cogent arguments that Prop 8 supporters made concern the history of marriage and the will of the voters of the state of California. On the latter point, while acknowledging judicial reluctance to invalidate the will of the people, Judge Walker noted that no one can vote away constitutional rights—even a majority. Think of it this way. Any lawyer will tell you that those “hold harmless” forms you sign before going whale watching or taking a school outing are basically worthless. You cannot sign away your rights. This is true of constitutional protections as well—one group cannot vote away another group’s rights. The right to marry is protected by the U.S. Constitution. The constitutional question during the trial was whether marriage can be restricted to a man and a woman without being guilty of discrimination based upon sex and sexual orientation. The court found no rational reason why the state had an interest in ensuring that a woman could marry a man but not another woman or why a man could marry a woman but not another man. Our governor and state attorney general actually agreed with the court.

On the former point, Judge Walker made an interesting argument about the history of marriage in the United States and California. While acknowledging that marriage has a long tradition of being between a man and a woman, Judge Walker noted that marriage practices have changed over time. In many states, inter-racial marriage was illegal until the U.S. Supreme Court ruled it unconstitutional in Loving v. Virginia in 1967. Looking back we may find anti-miscegenation laws archaic, but I wonder if those who opposed inter-racial marriages accused the court of being judicial activists, ignoring the wishes of the majority? Judge Walker also noted that marriages in California were once subject to the doctrine of coverture—a doctrine whereby a woman’s legal and economic identity was subsumed by her husband’s upon entering the marriage contract. This once-unquestioned aspect of marriage is now regarded as antithetical to the notion of marriage as a union of equals. (Just ask my wife.) Judge Walker contends that traditions in marriage have undergone an evolution, largely based upon perceived gender roles that we no longer view as appropriate, and concludes: “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

As a pastor in the United Church of Christ and a firm supporter of our denomination’s Open and Affirming stance, I applaud Judge Walker’s decision. As a straight man in a heterosexual marriage, I applaud Judge Walker’s decision. As a person who cherishes the institution of marriage and believes in the blessings it brings, I applaud Judge Walker’s decision. I pray you can too.

Yours on the journey,  Pastor B. J.