What’s remarkable about the right’s reaction to the Prop. 8 ruling is how the supporters of the gay-marriage ban in California continue to espouse the flimsy justifications that crumbled under judicial review. That’s because [[ANTECEDENT CONFUSION they]] are entirely irrelevant to the central question the judge considered: Does the ban violate the Equal Protection and Due Process clauses of the Constitution?
In all the conservative commentary I’ve riffled through — it’s pretty much the same wherever you look — I haven’t seen one argument for why [[AGAIN: it]] doesn’t. Instead, the ban’s supporters continue to iterate arguments completely orthogonal to the actual substance of the debate. Take National Review‘s Richard Lowry. He argues that the judge’s decision 1) constitutes judicial overreach by “inventing” a constitutional right to same-sex marriage; 2) the people of California have a right to decide whether gay people can marry; and 3) marriage has always and everywhere been defined as being “between one man and one woman.” At heart, each of these contentions — almost identical to what was offered in court — is deeply flawed:
1. Judge Vaughn Walker didn’t “invent” a new right. Why does applying the U.S. Constitution to the relevant facts in the case constitute judicial activism? That’s a court’s job! The judge determined — after giving the ban’s supporters ample opportunity to demonstrate otherwise — that Prop. 8 fails to comply with the traditionally established requirements of the Equal Protection and Due Process clauses. You can disagree with the analysis and the conclusion, but that’s not what conservatives are doing; instead, they’re arguing that it is not within a judge’s power to rule on constitutional matters.
2. One of the cases’ major questions was indeed whether Californians had a “right” to enact the ban. Surely Lowry and his supporters would agree that you shouldn’t put fundamental rights like freedom of speech up to a popular vote, but fail to address whether the right to marry falls in this category of core rights. The assumption is that it doesn’t, which conservatives take as an irrefutable axiom. Unfortunately, courts don’t care how right you think you are; they care about how well you can make the case.
This argument takes another, especially annoying, form: Are you going to say that the majority of California voters who voted for Prop. 8 are wrong? In short, yes. There’s no shortage of historical examples to show that majorities can be wrong, and often are.
3. It’s just patently false to say that marriage has always been defined as being between one man and one woman. Look no further than the Mormon Church, which in the past has openly recognized and sanctioned polygamous marriages. Even if this were true, the premise of this argument is flawed — and the same that was used to justify slavery: tradition makes right.
I wish the arguments for why conservatives think the Prop. 8 decision was wrong were more complex, but this is essentially what Prop. 8’s defenders argued in court. And of course they have no bearing on the legal questions at stake: Does Prop. 8 infringe on a fundamental right? Is homosexuality immutable? Have gays been subject to a historical pattern of discrimination? Does allowing same-sex marriage harm other marriages? Does marriage have to be procreative? Is there a “compelling state interest” or even a “rational basis” for restricting marriage?
On all these questions, the defense demurred but was unable to provide any evidence for its claims. I offer Lowry and his ilk a challenge: I will donate an entire month’s pay to the anti-gay-marriage National Organization for Marriage if they can offer a single shred of evidence that same-sex marriage harms society — not a hypothetical, not simply “Sweden,” but a credible academic study showing the concrete negative effects on heterosexual marriage.
— Gabriel Arana
