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.This was not a shock, nor does anyone have delusions that this case will settle the issue.
However, this author was surprised to learn is that Judge Walker is a homosexual. Is that an issue? Due to the fact he was hearing a case that was seeking to overturn voter-mandated law that discriminated against the judge personally, I think it probably should have been made a major issue, and will be made an issue in the appeal, by pro-Proposition 8 counsel. In order to help the judge seem more capable of impartiality despite his orientation, the SFGate article mentioned that the judge has his opponents in the gay community in California due to his representation of the US Olympic Committee against the SF Gay Olympics. The SFGate also quoted a gay California state senator as follows:
"It seems curious to me, that when the state Supreme Court heard a challenge to Prop. 8, the justices' sexual orientation was never discussed."This argument on Walker's behalf suggests that impugning Judge Walker's impartiality due to his sexuality requires that the sexuality of any judge who hears a gay marriage case must likewise be impugned. The problem with his argument is with the target of the law. Someone who is heterosexual (and not involved with anti-gay marriage groups) can look at this issue far more impartially than (I believe) someone who is gay because the decision has no effect on such a heterosexual's personal life or the status of a group for which such a judge would be personally connected. Conversely, a homosexual (or even a Mormon) being the judge in a gay marriage case will impugn, either the judges actual judgment or the validity that others place in the impartiality of that judgment. Judge Walker should have recused himself and by not doing so he has provided ammunition for the appeal.
On the judicial front, this case is destined for a SCOTUS finale. Yesterday, before the expected judgment was released, fellow blogger Tom Grover discussed the problems that the current Supreme Court holds for gay marriage proponents on a Facebook feed. Despite the additions of two liberal female justices (after Kagen is sworn in) the court has one of the most conservative benches in recent history. With such a conservative bench there is a strong likelihood that state's rights may trump anti-discrimination clauses and produce a possibly insurmountable anti-gay marriage precedence. In this regard, the longer this process takes to get to the Supreme Court the better for gay marriage proponents and vice versa for the opposition.
As for the opinion of Green Jello, I believe that civil unions provide the best option for a fair compromise on this issue. Consenting adults are allowed to enter into any number of contractual arrangements. Marital contracts that the law recognizes should be no different, and I do not see how allowing two men or women to enter into such contracts effects my rights.
However, I can see a problem for religious organizations and unions between between gays being defined as marriages. If gay unions are defined as marriage and a religious group refuses to solemnize such contracts there would be possible exposure to anti-discrimination accusations and challenges to such groups tax-exempt status. Due to this issue, marriage may need to be best defined in the law as a wholly religious rite separate from the civil marital contract. This would provide equality in the law without placing undue pressure on religions to recognize and solemnize something that violates such religion's creeds.
I doubt any such compromises will ever be pursued. This case will be decided by the high court in the near future and all side will have to live with that decision. I hope that this debate will follow the course asked for in a recent LDS church statement:
We recognize that this decision represents only the opening of a vigorous debate in the courts over the rights of the people to define and protect this most fundamental institution—marriage.
“There is no doubt that today’s ruling will add to the marriage debate in this country and we urge people on all sides of this issue to act in a spirit of mutual respect and civility toward those with a different opinion.”