Judge Walker's August 4 decision in Perry v. Schwarzenegger has come under vigorous attack from many but not all conservatives and occasionally even stronger attack from some but hardly all on the religious right. It has been praised to the heavens by many on the left, but the reception from gay rights advocates has not been consistently favorable. For example, Michael Dorf wrote
[START BLOCKQUOTE]The prospect of a Supreme Court ruling on same-sex marriage fills members of the gay-rights advocacy community (of which I am at least a fellow traveler if not a full-fledged participant) with both hope and dread. By denying a right to same-sex marriage, the Justices could set the cause back a decade or more. And paradoxically, even by recognizing a right to same-sex marriage, the Supreme Court could harm the movement, because such a ruling could spark a backlash. [END BLOCKQUOTE]I have a sense that the case was poorly handled by the Proposition 8 proponents; the refusal of Governor Schwarzenegger and Attorney General Brown to support Proposition 8 probably hurt the proponents' chances. If states have the authority to define marriage based on traditional values, Judge Walker could probably have received better assistance from the Proposition 8 proponents than he did.
When Judge Walker issued his August 4 decision, he imposed a temporary stay on its implementation. On August 7, the governor and attorney general asked Judge Walker to terminate the stay. The proponents of Proposition 8 asked that the stay remain in effect pending appeal. On August 12, Judge Walker ruled, keeping the stay in effect only until August 18 to give the Ninth Circuit an opportunity to rule on a stay sought there. He indicated that since the State of California had opposed its extension, the proponents of Proposition face no apparent harm from its denial and probably have no legal basis for seeking one. "Both plaintiffs and the state defendants have disavowed the harms identified by proponents." The question of a stay and other matters will be before the Ninth Circuit and whatever it says may well tip its hand as to how it will ultimately rule on the merits of the appeal. Be that as it may, there are some perhaps larger issues to consider.
In writing my August 5 article on Judge Walker's decision, I wore my attorney hat and tried to present legal analysis without advocacy. For this article, I have removed my hat.
I strongly favor states' rights and think that Article 10 of the Constitution has long been improperly curtailed. Nevertheless, states also seem occasionally to stick their noses where they do not belong and multiple county and municipal governments occasionally do the same thing. The Federal Government, while bigger and often more overbearing, has no monopoly.
Religion is generally a force for good in the United States. That I don't have any doesn't bother me and should not be a matter of concern for others either; as far as I am aware, it isn't. Those who, for religious or other reasons, want to pray, to argue that life begins at the moment of conception or that homosexual marriage is sinful have every right to do so. When advocating and voting on issues, they have every right to do so in accordance with their beliefs. My views on the rationality or irrationality of their beliefs don't matter and shouldn't; neither should the views of a judge. Freedom of religion is also good, provided that its exercise does not impinge upon my rights or those of others; I would not appreciate someone holding a prayer vigil or, for that matter, displaying an "Elvis Lives!" sign while trespassing on my front lawn or throwing holy water or anything else at me as I walk down a public sidewalk; I have experienced nothing of the sort. Freedom from religion is also good, provided that it does not impinge unduly upon the rights of those who desire to be religious. Those who don't want to celebrate Christmas need not do so but have no business preventing others. I don't object to Christmas trees, reasonably non-denominational voluntary prayer or Christmas carols in public schools, provided that nobody who does not desire to participate is pressured to do so on pain of penalty or even expressions of disapproval by teachers and other school officials. If other students want to express verbal disapproval of non-participating students, tough; it's a part of life and they had better become accustomed to that sort of thing. Kids and even alleged adults hatefully express public disapproval for all sorts of lawful things which do not harm them or others – wearing unfashionable shoes, outdated hairstyles and the like. There was lots of disgusting campaign commentary about Governor Palin. The "easily offended" on all sides of various issues are themselves generally offensive. Remember Al Cap's SWINE – Students Wildly Indignant about Nearly Everything? They have not disappeared; some of them have just aged ungracefully.
This leads back to the issue of homosexual marriage. Rather, it leads to the larger issue of government approved marriage in general. Back in the "good old days" (think old fashioned dentistry) which some other old farts may recall, when most husbands worked to provide for their families and most wives stayed at home to bake cookies, clean house and care for the kids, there were arguably valid reasons for limited government oversight of marriage. Stay-at-home wives with no independent means of support and neither job opportunities nor experience needed security; divorce proceedings or their prospect provided at least some. That beats welfare, one of the few alternatives. The situation has changed, for better or worse.
The only current basis for governmental intervention in marriage which seems to make sense is that governments provide many benefits to, and impose a few penalties on, those who are married in ways of which governments approve. The benefits, however marriage may be officially defined, may well promote marriage. However, they also promote divorce since only officially married people can obtain divorces and many of them do.
When governments have financial interests in marriage, they are likely to act according to their views of marriage or at least whatever views the politicians currently in power deem politically expedient. Governor Schwarzenegger was for Proposition 8 before he was against it. And there lies a problem. A similar problem exists in federal funding for education. To the extent that the federal government holds the purse strings, it controls what is taught and how it is taught. The Tenth Amendment is not significantly implicated in this sort of federal intervention because the states accept the money and the accompanying conditions voluntarily. As with most drugs, addiction follows.
Reverting to Judge Walker's California Proposition 8 decision, it revolved about two essential but dubious findings. First, Proposition 8 was claimed to have passed because of animosity toward homosexuals. I suspect the proponents of Proposition 8 did not do a very good job of challenging the "facts" behind this finding. The notion itself is rather strange; sociologists can from opinions on all sorts of matters and if they have appropriate credentials their opinions are treated as "expert" opinions, similar to testimony as to facts, and are entitled to some weight. Only "expert opinions" count. I may have a strong opinion about the superior intelligence of Akita pups compared to Border Collie pups. My opinion would not be admissible in court, even if highly relevant to a contested issue of relative pup intelligence, because I am not an expert in such matters. Expert opinions aside, however, actually knowing what motivates people to vote one way or another is impossible, just as it is impossible to know whether a particular person, for example a judge, is actuated by chronic constipation or particular empathy toward some group of people. Even if specific Californians testified under oath that they voted for Proposition 8 because of hatred for homosexuals, there is no apparent reason to impute their hatred to others. Even if there were, so what? Some people probably voted for Senator Obama because they hated President Bush passionately and transferred their hatred to the Republican presidential nominee. Lots of hate for Governor Palin was also evident. So? Even a conclusive showing that sufficient numbers voted for President Obama on the basis of hatred to cause his election would not be a valid basis for invalidating it. Generally, the personal motivations of voters have no bearing on the legitimacy of elections and people are free to vote as they wish. Handsome and pretty candidates (other than certain governors of Alaska) probably have an advantage over hideous candidates and, like it or not, race matters, sometimes more than substantive issues.
Second, Judge Walker found that homosexuals who are denied the "right" to marry each other are thereby stigmatized and their committed relationships lack societal respect. That may be true; however, legal recognition of homosexual marriage seems unlikely to make a difference.
If people want to consider themselves and to be considered by others "married," they have some pretty good alternative options. Years ago, my wife (a woman) and I (a man) were married twice, to each other, over a period of several months. Our first marriage was conducted with the benefit of a marriage license in Annapolis, Maryland by a delightful Anglican priest. He expressed no problem with our requested modifications to the Book of Common Prayer marriage ceremony to delete religious references. Lots of our friends, some religious and some not, attended and the ceremony was followed by a big party. My wife's family and many of her old friends live in California, so we had an unofficial second "marriage" ceremony there later – using the same modified ceremony but with no California marriage license because we were already married. A family friend who was a Protestant chaplain at Stamford University presided. It was also a great ceremony, also followed by a big party.
It seems quite likely that many clergymen and others would be willing to conduct unofficial religious, quasi-religious or non-religious ceremonies for homosexual couples, without the benefit of a marriage license, and perhaps even sneak in such words as "I now pronounce you married." ("I now pronounce you man and wife" could be a tad awkward.) I can think of no reason why homosexual couples who want them can't have such celebrations and consider themselves "married." Nor can I think of any reason why friends and colleagues who would refuse to honor their unofficial mutual commitment would honor a state approved homosexual marriage ceremony instead. Some churches would likely consider the couple to be "living in sin" in either event and refuse them various sacraments; that's an important part of religious freedom.
An unofficial ceremony would currently have no legal effect, but so what? The various legal incidents of marriage (aside from government benefits and penalties and the ability to obtain a divorce) could be taken care of by contracts and wills; any interactions between the happy couple and official busy-bodies could be dealt with, as California has done, by conferring the same rights on those in civil unions as upon those who are married. The federal tax consequences of official marriage may (or may not) be heading toward the rocks, since a federal district judge in Gill v. OPM recently found substantial constitutional problems with federal reliance on the Defense of Marriage Act which defines marriage as between one man and one woman. [START BLOCKQUOTE.
[T]his court is convinced that "there exists no fairly conceivable set of facts that could ground a rational relationship" between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection.[END BLOCKQUOTE]The same argument could be made about long term committed but unofficial homosexual and heterosexual relationships. Their recognition for tax and other governmental purposes might well create administrative chaos, but there is so much of that already that the addition would hardly be noticed. These questions may be answered, by the Congress if not by the Supreme Court, one of these fine days. Otherwise, our unelected and unaccountable "civil servants" will probably have to try to answer them -- for tax, social security, veterans' benefits ad infinitum.
The government is a bloated, intrusive and obnoxious busy-body. Even sweet, considerate and kind nannies, like Mary Poppins, aren't so intrusive. Absent very compelling reasons, governments should leave people alone to conduct their own affairs (interpret "affairs" as you will). Are these Utopian fantasies? Probably, but at least I can have and express them.