Raising the Stakes on Gay Marriage
Wednesday 04 August 2010
by: Eugene Robinson, Op-Ed
Walker found that California's Proposition 8, which sought to ban gay marriage in the state, violated not one but two of the amendment's clauses -- those guaranteeing due process, and equal protection under the law. By deciding the case on constitutional grounds, and by crafting such a detailed and comprehensive ruling, Walker all but guaranteed that the issue will eventually reach the Supreme Court.
It is not irrational for proponents of gay marriage to worry how the high court will finally rule, given its recent record of conservative activism. But Walker's ruling will not be so easy to assail. At trial, the losing side presented a shockingly weak case. By contrast, the plaintiffs' legal team -- led by two superlawyers from opposite ends of the political spectrum, conservative Ted Olson and liberal David Boies -- offered witnesses and arguments that covered every conceivable base.
"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license," Walker concluded. "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."
That's the kind of language that qualifies as "sweeping."
Federal judges hate it when journalists note which president appointed them, because they reject the notion that being named by a Republican or a Democrat has any bearing on how they interpret and apply the law. But in this case, which seems likely to achieve landmark status, it's worth noting that Walker is no card-carrying liberal. Known as a conservative with a libertarian streak, Walker was first nominated to the federal bench by Ronald Reagan in 1987. His appointment was stalled in the Senate Judiciary Committee, however, because a group of House Democrats -- led by Nancy Pelosi -- claimed he was insensitive to gays and the poor. George Bush the Elder renewed Walker's nomination in 1989 and managed to get it through.
It is also worth noting that both the San Francisco Chronicle and the Los Angeles Times have reported that Walker is gay. The judge has neither confirmed nor denied the reports, and the legal team defending Proposition 8 did not raise the issue -- perhaps because Walker has shown no hesitation to rule against gay plaintiffs or defendants when that is what the law requires.
The 14th Amendment, adopted in 1868, has been used to prohibit states of the former Confederacy from denying full citizenship to freed slaves; to guarantee that protections of the Bill of Rights are applied throughout the nation; and to invalidate the Jim Crow laws that mandated racial segregation.
The clause guaranteeing equal protection under the law was the basis of the 1954 Brown v. Board of Education ruling in which the Supreme Court banned discrimination in public schools. Walker used the same clause to rule that there was no "rational justification" for treating same-sex relationships as inferior. "Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians," he wrote.
The Supreme Court used the due process clause in its 1967 Loving v. Virginia decision that struck down laws against interracial marriage. Walker used the same language to rule that Proposition 8 was unconstitutional because it denies a "fundamental" right to selected citizens without a legitimate, let alone compelling, reason to do so.
One decision by one federal judge does not settle the controversy over gay marriage. But Walker's 136-page ruling lays down a formidable marker because it changes the terms of the debate. He frames gay marriage as a question involving the most basic, cherished rights that the Constitution guarantees to all Americans. In doing so, he raises the stakes sky-high: Are gays and lesbians full citizens of this country, or are they something less?
Walker stepped up to the plate and swung for the fences. He hit a home run.
Eugene Robinson's e-mail address is eugenerobinson(at)washpost.com.